This FunnelDash Co-Branded Card Program Terms of Service (the “Agreement” or “TOS”) governs your use of the FunnelDash card issuing platform (the “FunnelDash Platform”) and Card program management and related services as further described herein (the “Services”) made available to you by us, and is a legally binding contract between you, the legal entity listed in your Program application (“Company”, “you” or “your”) and FunnelDash, Inc., a Delaware corporation, on behalf of itself and its Affiliates (“FunnelDash”, “we”, “us” or “our”). FunnelDash is the program manager for Co-Branded Cards issued through the FunnelDash Platform on behalf of our financial institution partners (“Issuers”). As further set forth in Section 4.2, you agree to use FunnelDash as your exclusive provider of Cards to your Customers during the term of the Agreement. The Services shall include access to the following modules: co-branded card offer and sign up page, co-branded card-holder portal, payment processing, card issuance, fraud & credit risk models, KYB & KYC business and identity verification, card-holder wallet API, co-brand partner back office, ledger accounting, compliance monitoring, automated broad-based (non-linear & non-monotonic) probabilistic AI underwriting models, customer relationship support and servicing, credit bureau integration & reporting, and capital markets program management.
PLEASE TAKE THE TIME TO READ THIS AGREEMENT CAREFULLY BEFORE YOU ACCESS OR USE THE FunnelDash PLATFORM AND ANY OF THE FunnelDash MATERIALS AS IT FORMS A LEGALLY BINDING CONTRACT BETWEEN YOU AND FunnelDash.
BY APPLYING FOR A PROGRAM; AND ACCESSING OR USING THE FunnelDash PLATFORM, THE DEVELOPER TOOLS AND FunnelDash MATERIALS IN CONNECTION WITH AN APPROVED PROGRAM, YOU CONFIRM THAT YOU ACCEPT THE TERMS OF THIS AGREEMENT, AGREE TO COMPLY WITH THEM AND BE BOUND BY THEM, AND AFFIRM THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF THE COMPANY NAMED IN YOUR PROGRAM APPLICATION. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, FunnelDash IS NOT WILLING TO GRANT YOU THE RIGHT TO USE OR ACCESS THE FunnelDash PLATFORM, CREATE AND MANAGE A PROGRAM, RECEIVE OR DISTRIBUTE CARDS, OR USE THE FunnelDash PLATFORM OR THE DEVELOPER TOOLS. IN SUCH EVENT, YOU MAY NOT CREATE A PROGRAM, OR ACCESS OR USE THE FunnelDash MATERIALS OR ANY OTHER PROPRIETARY SOFTWARE OR MATERIALS RELATING TO THE FunnelDash PLATFORM.
This Agreement is binding as of the date you submit your application for a Program. Depending on the Program Specifications you submit with your Program application, certain of these terms will not apply to you. When you submit your Program application and Program Specifications you are consenting to receive all Notices from us electronically. We may also modify this Agreement and any other terms, agreements, or policies (“Supplemental Terms”) referenced in this Agreement by providing Notice of the updated versions of this Agreement on our website located at https://www.FunnelDash.com/legal/. Your continued use of the Services will serve as your acceptance of any changes to this Agreement or any Supplemental Terms.
SECTION 15.10 ALSO INCLUDES YOUR AGREEMENT TO RESOLVE DISPUTES BETWEEN YOU AND FunnelDash THROUGH BINDING ARBITRATION, AND A WAIVER OF YOUR RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN ANY CONSOLIDATED OR CLASS ACTIONS AGAINST US. PLEASE READ IT CAREFULLY AND ONLY CONSENT TO THESE TERMS IF YOU UNDERSTAND AND AGREE TO THIS PROVISION.
“ACH” means the Automated Clearinghouse Payment Network, governed by the NACHA Rules.
“Administrator” means the natural Person(s) authorized by the Company to apply for a Program, manage the Company’s use of and access to the FunnelDash Platform and the Services, and who is authorized to act on the Company’s behalf.
“Affiliate” means, with regards to each party: (a) any Person or entity controlling, controlled by, or under common control with such party; or (b) any partner of or joint venturer with such party. For purposes of this definition, control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person or entity, whether through ownership of voting securities or otherwise.
“AML/CTF” means the policies and procedures implemented to prevent money laundering and terrorist financing in compliance with the BSA and Applicable Law.
“API” means an application programming interface that describes and defines the interactions among the components of the FunnelDash Platform and the Services, as applicable.
“Applicable Law” means any: (a) statute, ordinance, permit, treaty, rule, regulation, law, or common law interpretation of any law applicable to a party; (b) bulletin, judgment, order, decree, injunction, request, recommendation, direction, guidance, examination, or determination of any Regulatory Authority with jurisdiction or authority over a party; or (c) any negotiated settlement, order or agreement by a party with an arbitrator or a Regulatory Authority.
“Bank Secrecy Act” or “BSA” means the federal Bank Secrecy Act, 12 U.S.C. §§ 1951 et seq. and its implementing regulations, as amended by the USA PATRIOT Act or otherwise.
“Beneficial Owner” means any individual who, directly or indirectly, owns 25% or more of the equity interests of Company.
“Business Day” means any day, other than a Saturday, Sunday, or federal holiday, on which Issuer is open for business in the United States.
“Card” means a co-branded physical or virtual Network-branded debit card, credit card, charge card or PAN: (a) issued by Issuer at FunnelDash’s or a Customer’s request, and associated with a Payment Account; (b) which may be used by Cardholders to conduct Transactions; except that the Cards are not credit cards or charge cards, and unless otherwise approved by Issuer, does not constitute a checking, savings, demand deposit or other financial asset account; and (c) that is used solely for business purposes.
“Cardholder” means a Customer or any other natural Person to whom Issuer issues a Card pursuant to the Program.
“Cardholder Account” means the individual account associated with a Card provided by FunnelDash and associated with the Cardholder’s Payment Account that permits Cardholders to view Transactions, request replacement Cards, and otherwise manage a Cardholder’s use of Cards.
“Cardholder Benefits” means the benefits which are agreed to between Company and Cardholder (in each case in accordance with the terms of this Agreement and the Fee Schedule).
“Cardholder Agreement” means the agreement between Issuer and an approved Cardholder governing the terms of use of a Card.
“Cardholder Bank Account” means the financial asset account indicated by a Cardholder to FunnelDash that is used to fund the Cardholder’s Payment Account.
“Cardholder Information” means (a) all “Nonpublic Personal Information” (as defined in 12 C.F.R. § 1016.3(p)), “Personally Identifiable Financial Information” (as defined in 12 C.F.R. § 1016.3(q)), “Identifying Information” (as defined in 12 C.F.R. § 1022.3(g)); (b) whole or partial Card numbers, security codes, service codes (i.e., the three or four digit number on the magnetic stripe that specifies acceptance requirements and limitations for a magnetic stripe read transaction), valid to and from dates, data related to Transactions (regardless of whether or not a physical card is used in connection with such Transactions); (c) data generated or created in connection with Card processing and maintenance activities, Card statements and Cardholder service, telephone logs and records and other documents and information necessary for the processing and maintenance of Cards; (d) personal information (as defined by the CCPA); (e) any “cardholder data” (as defined in the PCI-DSS); (f) demographic data concerning Cardholders and (g) any other personally-identifying information with respect to Cardholders; except that “Cardholder Information” does not include (i) data or information collected from a Cardholder by a party, or any of its Affiliates or service providers, in connection with activity that is unrelated to Cardholder Accounts, Cards, and the Program; or (ii) personal or other information regarding Company Personnel.
“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. and its implementing regulations.
“Change of Control” means the transfer of more than 25% or more of a legal entity’s total assets; or a transaction or series of transactions that results in any Person or group of Persons acquiring, directly or indirectly, a majority of the combined voting power of the outstanding equity of a legal entity or the parent of a legal entity.
“Chargeback” means a dispute regarding a Transaction: (a) that a Cardholder initiates against a merchant for an unresolved dispute with the merchant regarding a Transaction; or (b) not authorized by the Cardholder.
“Cobranded Card” means a Card which is co-branded between FunnelDash and Company pursuant to this Agreement.
“Company App” means the mobile application provided by Company to Customers to access and manage the Company’s products and services.
“Company Bank Account” means the financial asset account indicated by Company through the Dashboard and used to fund the Program Account and Cards, pay Program Fees, and fund any Reserve.
“Company Information” means (a) Company’s registered business name, business address, ownership details, contact information including email and phone number, tax identification number, the nature of the business, financial information, credit history, Company Bank Account details, corporate registration certificate, proof of address, and other business information that we may require or request from time to time; and (b) the names, contact information, personal identification, personal addresses, social security numbers, and dates of birth of Administrators, Beneficial Owners, and Control Persons.
“Company IP” means the Company Platform and related technology; and all copyrights, patents, trade secrets, Company Marks, and all other IP developed or owned by Company, and all improvements, modifications, or upgrades made to such IP by Company during the term of the Agreement.
“Company Marks” means the names and other distinctive marks or logos, service marks, and trademarks of Company.
“Company Platform” means Company’s website, the Company App, Company APIs (if applicable), and all other Company software and systems.
“Consumer Protection Laws” mean the Electronic Funds Transfer Act and Regulation E, any federal law or regulation enforced by the Consumer Financial Protection Bureau, and any other state or federal consumer protection laws related to Cards and bank account transfers.
“Control Person” means a natural Person with significant responsibility to control, manage, or direct the Company.
“Customer” means a Person with whom Company has established an independent business relationship for the use of Company’s products and services and to whom FunnelDash may provide a Card, a Cardholder Account, and a Payment Account.
“Customer Information” means all Personal information or other information collected from a Customer by Company and any of its respective Affiliates or service providers in connection with providing Company’s products or services to a Customer.
“Dashboard” means the web interface provided by FunnelDash to manage your Program.
“Developer Keys” means the credentials provided by FunnelDash to permit Company to access and use the Developer Tools (as applicable)
“Developer Tools” means any developer tools provided from time to time by FunnelDash through the FunnelDash Platform (including, without limitation, any APIs, software development kits, webhooks, the Dashboard, and the FunnelDash software libraries, specifications, and other documentation, as applicable).
“EFTA” means the Electronic Fund Transfer Act, 15 U.S.C. §§ 1693, et seq. and Regulation E, 12 C.F.R. Part 1005.
“Feedback” means all oral or written feedback, suggestions, ideas, or enhancement requests in any form or medium that Company provides to or shares with FunnelDash regarding the FunnelDash Platform and the Services.
“Fee Schedule” means the schedule of fees set forth in your Dashboard or on a separate schedule executed by you and FunnelDash.
“Funds” means currency or any other form of monetary value that is the subject of a Transaction.
“FunnelDash Account” means the account provided to you according to the terms of this Agreement by which you access the FunnelDash Platform and the Developer Tools (as applicable), manage your Program, and use the Services.
"FunnelDash Materials" means the FunnelDash Platform, Developer Tools (as applicable), the FunnelDash Platform and related technology; specifications, files, guides, supporting materials, website, technical specifications and all other proprietary materials that FunnelDash makes available to you that relate to the Platform; Program Information; and copyrights, patents, trade secrets, trade or service marks, brands, logos, and all other IP developed or owned by FunnelDash (including any subsequent improvements, modifications, or upgrades to such materials that FunnelDash makes available to you). Solely for the purposes of identifying the Issuer on Cards or in connection with the Program, “FunnelDash Materials” also includes Issuer’s name and Marks.
“FunnelDash Partner” means an Issuer, Third-Party Service Provider, or other partner that provides services related to your use of the FunnelDash Platform and FunnelDash’s provision of the Services to you.
“GLBA” means, collectively, Title V - Privacy of the Gramm-Leach-Bliley Act its implementing regulations, and the standards for safeguarding customer information set forth in 12 CFR Part 364 and 16 CFR Part 314.
“Intellectual Property” or “IP” means registered or unregistered trademarks, service marks, trade names, business names, design rights, database rights and any application for registration of any such rights; know-how, confidential information, trade secrets, franchise interests, license interests, patent rights, copyright interests in respect of software, systems content, utility models inventions and related rights; property rights, interest in any services, software, or hardware and all other similar property and proprietary rights.
“Insolvency Event” means a set of circumstances pursuant to which a party: (a) is unable to perform under this Agreement and becomes or is declared insolvent, or is the subject of any liquidation or insolvency proceedings, including the appointment of a receiver or similar officer for such party; (b) makes an assignment for the benefit of all or substantially all its creditors; (c) enters into an agreement for the composition, extension, or readjustment of all or substantially all its debts or obligations; or (d) files a voluntary bankruptcy petition or has an involuntary bankruptcy petition filed against it and either the voluntary or involuntary petition is not dismissed within sixty 60 days of the petition's filing.
“Interchange Fees” means (i) with respect to U.S. transactions, the percentage interchange transaction fees (which are set by Issuers and which vary by merchant and/or type of transaction) that a merchant is required to pay whenever a Customer uses a Card to make a U.S. purchase from such merchant, and (ii) with respect to international transactions, zero percent.
“Loss” means all losses, claims, breaches, suits, damages, liabilities, costs, charges, reasonable attorneys’ fees, judgments, fines, court costs and expenses, amounts paid in settlement, and all other liabilities of every nature, kind, and description regardless of the form of action or legal theory.
“Marketing Materials” means email solicitation messages, published advertising (such as newspaper and magazine advertisements), Internet media, Card art, Card carriers, Card displays, social media posts, blogs, tweets, texts, banner ads, telemarketing scripts, television or radio advertisements, brochures, postcards, posters, direct mailings, signage, frequently asked questions, interview or public speaking scripts and talking points, sales materials, press releases and all other media of any or nature intended for public dissemination or to promote, advertise or market Cards or the Program.
“Marks” means a Person’s company name and other distinctive marks or logos, service marks, trademarks and copyrights.
“Mastercard” means Mastercard Incorporated, Mastercard Worldwide, Inc., and Mastercard International Incorporated.
“NACHA” means the National Automated Clearing House Association and its successors and assigns.
“Notice” means any physical or electronic communication, or legal notices related to this Agreement that are provided to you or Administrators through text or SMS, email, your FunnelDash Account, the Dashboard, or by other means in accordance with Section 15.1.
“Network” means the Payment Network operator whose logo appears on the Card.
“Payment Account” means a personal, virtual deposit account without paper check-writing capabilities established on behalf of a Cardholder within an FDIC-insured custodial account by Issuer to fund Transactions, make electronic funds transfers to third parties, or to send payments to cards through a Payment Network.
“Payment Card” means a credit or debit card: (a) used by Company to fund the Program Account to pay amounts owed to FunnelDash or to provide funding for promotional Payment Account statement credits.; or (b) used by a Cardholder to fund a Payment Account.
“Payment Network” means Visa, Mastercard, American Express, NYCE, ACH, or any other card association or electronic payment network utilized by Issuer to issue Cards or otherwise utilized by any party to make payments or to otherwise fulfill a party’s obligations under this Agreement.
“PCI DSS” means the Payment Card Industry Data Security Standard, or any successor requirements, as each may be amended or otherwise modified from time to time.
“Penalties” mean penalties or charges imposed on you or us by Issuer, the Network, Company’s bank, or a Cardholder’s bank in relation to your Program, for: (a) misuse of Cardholder Accounts; (b) over-the-limit, late, missed, reversed, or failed payments; or (c) any other penalty imposed on you or us related to the Program.
“Person” means a natural person, company, partnership, sole proprietorship, joint venture, incorporated or unincorporated entity, or any other form of entity, with or without a separate legal personality.
“Personnel” means a Person’s officers, employees, agents, representatives and contractors, and any other individuals that perform duties on behalf of such Person.
“Primary Account Number” or “PAN” means the 16-digit account number associated with a Card.
“Privacy Notices” means all privacy policy disclosure statements required by the GLBA, the CCPA, and all other Applicable Law in connection with the use of any Cardholder Information by Company, FunnelDash, Issuer, and any of Company’s, FunnelDash’s or Issuer’s Affiliates or any third party engaged by Company, FunnelDash, or Issuer in connection with a Program.
“Program” means the marketing, promotion, distribution, sale, and servicing of Cards, Cardholder Accounts, and Payment Accounts pursuant to the Program Specifications and the terms of this Agreement between Company and FunnelDash.
“Program Account” means Company’s virtual account used to pay Program Fees and provide credits to Payment Accounts in connection with a Program promotion or Card rewards program.
“Program Fees” mean periodic fees, foreign transaction fees, funds transfer fees, Cardholder Account maintenance fees, Card issuance or replacement fees, Payment Account fees, and all other Program-related fees or charges set forth in the Dashboard.
“Program Information” means Cardholder Information; the date, time, Transaction amount, merchant identifier, and all other Transaction information generated or recorded by FunnelDash, the Network, and any Rewards Program Information.
“Program Materials” means Marketing Materials, training materials, Program-related policies and procedures, Cardholder Agreements, Cardholder service letters, any website established by Company in connection with the Program, Cardholder service scripts, interactive voice response messaging, any information, notices or disclosures relating to Cards provided to Cardholders; Privacy Notices, error-resolution notices, change-in-terms notices, and disclosures required by the EFTA, and all other written or electronic materials, any amendments or updates to such materials relating to the Program.
“Program Specifications” means the Card type, Program purpose, Card features, and all other specifications provided by Company in its Program application.
“Qualified Volume” means all qualified spending on the Cards issued to Cardholders which is made in compliance with the terms of the Program in each case as determined in our reasonable discretion.
“Regulatory Authority” means any of the following Persons with actual or apparent administrative, executive, judicial, legislative, police, regulatory or taxing authority or power that asserts such authority over this Agreement, either party, or their Affiliates: (a) a country, state, county, city, town, borough, village, district or other jurisdiction; (b) a federal, state, local, municipal, non-United States or other government; (c) any agency, branch, department, board, commission, court, tribunal or any other governmental authority of any nature; and (d) any official body or self-regulatory body that supervises or otherwise exercises authority over any party, the Issuer or any of their respective Affiliates; but which does not include the Network.
“Restricted Business” means a business that is not eligible for a Program because such business engages in one or more business activities prohibited by Issuer or FunnelDash.
“Rewards Program Information” means all rewards, benefits, points, Cardholder status, and all related information generated by FunnelDash regarding any Cardholder rewards associated with a Program.
“Rules” means the operating rules and regulations of a Payment Network.
“Sanctioned Person” means any individual or organization that is subject to United States sanctions laws, identified on any lists maintained by the Office of Foreign Assets Control or the United States State Department, or is subject to any law, regulation, or other list of any government agency that prohibits or limits us from providing an FunnelDash Account or the Services to such Person or from otherwise conducting business with such Person.
“Security Guidelines” means the Interagency Guidelines Establishing Standards for Safeguarding Customer Information, the FFIEC Information Technology Examination Handbook, PCI-DSS, Section 501 of the GLBA, the CCPA, and any Applicable Law covering or related to the security of consumer or non-public information, and any other guidance or directives issued by a Regulatory Authority or Network pertaining to the security of Cardholder Information.
“Settlement Day” means each day on which Issuer is required to settle Funds to the Network in accordance with the Rules.
“Subcontractor” means any Affiliate, service provider, partner, subcontractor, agent, representative, or consultant that fulfills any of a party’s obligations or duties under this Agreement.
“Third-Party Claim” means any action or threatened action, suit, claim, proceeding or regulatory action, regardless of merit brought by any third party against a party.
“Third-Party Service Provider” means an Affiliate, subcontractor or other third party that assists FunnelDash in providing the FunnelDash Platform and the Services, that supports our internal operations, or that provides other services related or connected to, or provided through the Services and the FunnelDash Platform. For clarity, “Third-Party Service Provider” also includes Company.
“Transaction” means any transaction to purchase goods or services or to make a payment that is attributable to a Card.
As used in this Agreement: (a) all references to a plural form will include the singular form (and vice versa); (b) the terms “include” and “including” are meant to be illustrative and not exclusive, and will be deemed to mean “include without limitation,” “including, but not limited to”, or “including without limitation;” (c) the word “or” is both conjunctive and disjunctive; (d) the word “and” is conjunctive only; (e) references to “days” mean calendar days unless otherwise indicated through the use of the phrase “Business Day”; and (f) any reference made in this Agreement to a statute or statutory provision means such statute or statutory provision as it has been amended through the date as of which the particular portion of this Agreement is to take effect, or to any successor statute or statutory provision relating to the same subject as the statutory provision referred to in this Agreement, and to any then applicable rules or regulations, unless otherwise provided.
By submitting your Program application and using the Services, you are confirming that you are a legal entity incorporated in the United States. If you are not incorporated in the United States, you may not open an FunnelDash Account or use the Services. Further, the Administrator applying for the FunnelDash Account represents and warrants, individually and as your representative, that at all times during your use of the FunnelDash Platform and the Services: (a) you are and will remain a duly organized entity, validly existing and in good standing under the laws of the jurisdiction in which it was formed, and you have full power and authority and all permits, approvals, licenses and registrations from all applicable Regulatory Authorities required to carry on your business, and to own and operate your properties and assets; (b) you will maintain a valid United States employer identification number (EIN); (c) you will not engage in any business activities prohibited by FunnelDash or the Issuer; (d) neither the execution, nor delivery, nor the performance by you of this Agreement is in violation of any Applicable Law or the Rules, your charter or bylaws, or any contract or other instrument to which you are a party or by which you are bound; (e) all information provided by you is sufficient for the execution of this Agreement, and such information is and will remain accurate in all material aspects; (f) you are not acting as an agent or proxy for another Person to distribute or use Cards, and you will not transfer any of your rights under this Agreement to any other Person; (g) you are, and will at all times remain, the sole owner of the Company Marks, or a licensee with rights to sublicense the Company Marks in the manner contemplated in this Agreement; (h) the Administrator applying for the Program is authorized to submit the application to FunnelDash, bind you to agreements and manage your FunnelDash Account; and (i) neither the Administrator nor any of your Control Persons, Beneficial Owners, officers or directors is a Sanctioned Person.
You must provide complete and accurate Company Information to apply for and maintain a Program. We may also require you to provide documentary proof to verify the Company Information you provide us. To help the government fight the funding of terrorism and money laundering activities, U.S. federal law requires that financial institutions obtain, verify, and record certain Company Information. You agree to provide and keep up- to-date the required information to open and maintain your Program, and you understand that we may suspend or terminate your Program and your FunnelDash Account and this Agreement if you fail to do so. We may share this information with FunnelDash Partners for these purposes. You may be required to verify information previously provided or provide additional information in the course of applying for a Program or receiving the Services. You agree to immediately notify us if you experience or are likely to experience an Insolvency Event, in the event of a Change of Control, or if you fundamentally alter the nature of your business. You acknowledge that you have obtained or will obtain appropriate consent and authorization of any Personnel whose Personal Information you provide before sharing such information with us. You must connect a Company Bank Account to your FunnelDash Account or provide Payment Card to link to your FunnelDash Account, and you authorize us to submit your information to FunnelDash Partners to verify the account details and your ownership of the Company Bank Account or Payment Card. Your FunnelDash Account will be available to you on a preliminary basis only until we have reviewed and verified all required Company Information to determine whether you meet our underwriting and risk criteria. If we are unable to verify such information, or if the information is inaccurate, incomplete or misleading we may suspend or terminate your FunnelDash Account or your Program. We may also terminate your FunnelDash Account or your Program at any time and for any reason.
You must specify at least one Administrator to manage your Program. Administrators may use the Dashboard to: (a) add, remove, or manage additional Administrators and FunnelDash Account credentials; (b) choose Card color and upload Company Marks to customize Card designs for approval by FunnelDash and Issuer; (c) establish and monitor your Program’s merchant category code and other Card restrictions, and (d) permit Company Personnel to view Customers’ Cardholder Account information and Cardholder Account statements and Transaction reports. You agree to provide all Benefits that you have agreed to with Cardholders. You may not use your FunnelDash Account, the Program, the FunnelDash Platform or the Services for any purpose not described in the Program Specifications or Developer Tools you submitted with your Program application. You are responsible for securing your Administrators’ and each of your FunnelDash Account credentials, and for any actions or failure to act on the part of Administrators, your Personnel or any other Persons using an Administrator’s or Personnel’s credentials to access the FunnelDash Platform. You will promptly notify us of any unauthorized access to or use of your FunnelDash Account. Administrators may also use the Dashboard to invite Customers to apply for a Card, request promotional Payment Account statement credits, and monitor and analyze Transaction activity
During the term of this Agreement, you agree to (i) use FunnelDash as your exclusive provider of Cards to your Customers (ii) use FunnelDash’s AdCard Mastercard exclusively for all of your paid advertising card-related payments, and (iii) not use any Payment Network (including, without limitation, Visa and American Express) other than your FunnelDash AdCard Mastercard to pay for any of your advertising spend. If you breach this Section 4.2, FunnelDash shall have the right to withhold any payments otherwise due to you until you have cured such breach (as determined in FunnelDash’s reasonable discretion). For the sake of clarity, advertising spend includes all payments you make for advertising including, without limitation, with respect to the following advertisers: Facebook, Google, Snap, Tik Tok, Pinterest, Amazon, Twitter, Bing, Yahoo, and any other third-party ad networks.
We may update, and add or remove features to or from the FunnelDash Platform, the Developer Tools and the Services in our sole discretion. We will provide Notice to you in the event of any such changes to avoid disruption of the Services and to permit you to make any required changes to your Program implementation, and you agree to make any such changes in a timely manner; however, we cannot guarantee that the FunnelDash Platform, the Developer Tools and the Services will remain uninterrupted, and we reserve the right to make any such changes with no Notice to you in the event of an order from Issuer or a Regulatory Authority, to maintain the security and integrity if the FunnelDash Platform and the Services, or to prevent financial or reputational harm to FunnelDash or Issuer. If we provided Developer tools, we may provide Developer Keys to you through the Dashboard. In such case, you are responsible for securing your Developer Keys, and you may only share your Developer Keys with authorized Personnel. You must contact us immediately if your Developer Keys are lost or compromised; however, you will be solely liable for any Losses you, Issuer or we incur as a result of loss of or unauthorized access to your Developer Keys.
We may terminate or suspend your Program, or your FunnelDash Account in our sole discretion without Notice to you: (a) if we believe your FunnelDash Account has been compromised or that not doing so may pose a risk to FunnelDash, Issuers, Cardholders or any third parties; (b) if you fail to pay us any amounts you owe us; (c) if we know or have reason to know that you have experienced or are likely to experience significant financial Loss, an Insolvency Event or a Change in Control; (d) if you fundamentally change the business activities described in your Program application; (e) to comply with Applicable Law or Issuer’s risk management and compliance policies; or (f) for any other reason related to your and our obligations under this Agreement and the Program. We reserve the right to request additional information from you, or to impose additional financial terms or restrictions on you to re-activate your Program or FunnelDash Account. You may terminate your Program and close your FunnelDash Account at any time after paying any outstanding amounts you owe us by providing Notice to us through the Dashboard.
Depending on the information you provide in your Program specifications, you may use the Dashboard to invite Customers to apply for a Card. Each Card will: (a) be a customized design approved by FunnelDash and Issuer; and (b) include such other markings or information that FunnelDash, in its sole discretion, deems necessary to comply with Applicable Law and the Rules; in each case subject to the approval of Issuer and the relevant Network. The Marketing Materials are subject to approval in advance by FunnelDash and Issuer (in each case in our and Issuer’s sole discretion), in consultation with Company including, without limitation, with respect to Card design, Card fees, Card rewards or benefits, and other features. The terms and conditions of any Cardholder Agreements will be provided by FunnelDash.
You will utilize the FunnelDash Platform in order to invite Customers to apply for Cards, establish Cardholder Account credentials, fund Cards, manage Cardholder Accounts, and view Cardholder Account statements. FunnelDash will be solely responsible for: (a) Cardholder Account application approvals; (b) delivery of Cards, Cardholder Agreements, Privacy Notices and all other Program Materials to approved Customers; (c) Card activation and Cardholder Account management; and (d) re-issuance, at Company’s cost, of lost, defective or compromised Cards reported by Company or Cardholders. FunnelDash and Issuer will verify the identity of each Customer that applies for a Card in a manner consistent with FunnelDash and Issuer’s AML/CTF program and Applicable Law. FunnelDash and Issuer reserve the right to refuse to provide Cards, and Cardholder Accounts to anyone, and to cancel Cards and Cardholder Accounts for any reason. Cardholders may only use Cards for business purposes; and we will immediately revoke permission to use a Cardholder Account or Card if a Cardholder is using a Card for such purposes or violating the terms of the Cardholder Agreement.
Cards and Cardholder Accounts are the sole property of Issuer, and will be subject to cancellation at any time by FunnelDash or Issuer in accordance with the terms of this Agreement, any Cardholder Agreement, as required by Applicable Law, or where FunnelDash or Issuer believes you, your Personnel or your Customers are using Cards for fraudulent or illegal purposes, or in any manner that violates the terms of this Agreement or the Cardholder Agreements. The Cardholder Accounts and Cards may not be transferred and FunnelDash may cancel, repossess, or revoke the Cardholder Accounts and Cards at any time without prior notice to you or any Cardholder subject to the direction of Issuer, a Regulatory Authority, or as required by Applicable Law and the Rules.
We may close or suspend access to any Cardholder Account or Card in our sole discretion without notice to you or any Cardholder if: (a) we believe a Cardholder Account or Card has been compromised or that not doing so may pose a risk to you, FunnelDash, Issuers, Cardholders, the Network or any third parties. You will immediately notify us of any unauthorized access to or use of a Card or Cardholder Account. You will also notify us immediately if a Cardholder informs you, or if you become aware that a Card has been lost, stolen, or compromised.
Depending on your Program’s specifications and if applicable, you and FunnelDash may use the Dashboard to impose geographic, merchant category code, Transaction size, currency and other Card usage restrictions. Transactions made in a currency other than in United States Dollars (“USD”) will be converted into USD. We reserve the right to impose additional Card usage limitations in our sole discretion.
FunnelDash will provide technical support related to your Program, your FunnelDash Account and your use of the Services via the Dashboard. You may use the Dashboard to submit Cardholder service requests for Company Cards. Upon request and in FunnelDash’s sole discretion, FunnelDash may grant you read-only access to Cardholder Account information through the Dashboard, and you may elect to authorize your Personnel to: (a) respond to requests from Cardholders regarding Cardholder Account, ; (b) respond to frequently asked questions regarding the Program; and (c) provide Cardholder service contact information; and (d) transfer Cardholder support requests to FunnelDash; however, FunnelDash will be solely responsible for responding to all Card replacement requests, complaints, Transaction disputes, and any other inquiries from Cardholders that require write access to a Cardholder Account. Unless expressly authorized by FunnelDash and subject to applicable Supplemental Terms, you are not authorized to use your Developer Keys, the FunnelDash Platform or the Services to submit Card applications or open Cardholder Accounts on behalf of Cardholder, process Chargebacks, resolve Transaction disputes, or take any other actions whatsoever on behalf of a Cardholder. Your authorized Personnel may view Cardholder Account statements, and run Cardholder Account and Transaction reports; however, all access to Customers’ Cardholder Account credentials, PANs and Cardholder Information by you or your Personnel is strictly prohibited.
Program Information is our Confidential Information, and we will retain sole ownership and control of all Program Information. Except as expressly permitted in this Agreement, as required to perform your obligations under this Agreement, or to the extent required under Applicable Law or the Rules, you and your Affiliates may not use Program Information for any reason or provide or disclose any Program Information to any third party. Program Information and Company Information may include information already in your possession or collected by you from Customers, and the restrictions set forth in this Section 5.7 will not apply to any such overlapping information. FunnelDash and Issuer may use Program Information and Company Information as set forth in the FunnelDash Privacy Policy located at http://www.FunnelDash.com/privacy, and in our financial partner’s (Evolve Bank) privacy policy located at https://www.getevolved.com/privacy-policy To the extent applicable, you are responsible for obtaining consent from your Customers to invite them to apply for a Card, and if you share any of their Personal Information with us then you must disclose to them that you are sharing their Personal Information with us for the purposes of applying for a Card. You are also responsible for obtaining consent from your Personnel to share their Personal Information with us, and for disclosing to them that we may collect, retain, and disclose their Personal Information in connection with your Program, and your use of the FunnelDash Account, the FunnelDash Platform, and the Services.
In connection with the Program, you shall be entitled to earn the compensation set forth in the Fee Schedule.
In connection with the Program, you agree (i) to pay the Program Fees set forth in the Fee Schedule, (ii) that Fees may be withheld by us during any period that you are in breach of this Agreement (including, without limitation, your failure to provide the applicable Benefits to any Cardholders), and (iii) that all Fees are non-refundable. We may change the Program Fees by providing Notice to you prior to the date such changes become effective. Your continued use of the FunnelDash Account and the Services indicates your consent to the revised Program Fees. Program Fees are in addition to any amounts you may owe us, or for which you are otherwise liable pursuant to the terms of any other agreement that you have with us. We may offset any amount due to you by any fees or refunds that you owe to us including, without limitation, by: (i) withholding from Company, such amount of any other incentives payable as is necessary to satisfy such amount; (ii) requesting that Company pay us up to the full amount due to us within 30 days of such request; or (iii) offsetting the amounts owed by us against other incentives or any other amounts that would otherwise be payable to Company by us.
Cardholders will fund their Payment Accounts by providing Customer Bank Account information to us through their Cardholder Accounts or by linking their Payment Card in accordance with the terms of the Cardholder Agreement. We may also refuse to credit a Cardholder’s Payment Account for any reason in our sole discretion.
Depending on your Program Specifications, the nature of your Program, and the Company financial information you provide us, we may also require you to deposit Funds in a reserve account established by Issuer (the “Reserve Account”) in an amount determined by us or Issuer in our or Issuer’s sole discretion (the “Reserve”).
If a Cardholder contacts you to dispute a Transaction on a Card, you must refer the Cardholder to us, and notify us immediately through the Dashboard. You are not permitted to adjudicate, attempt to reverse, or otherwise advise Cardholders regarding the validity of a Transaction dispute.
You will be solely liable for any Penalties, fraud Losses, unauthorized Transactions, Losses due to ACH transfer reversals from the Company Bank Account or any Cardholder Account, or from any other financial asset account belonging to you or to a Cardholder that a Cardholder has associated with a Payment Account, and for any other amounts related to the Program resulting from use, misuse, loss or theft of Cards; Cardholder violations of the Cardholder Agreement; unauthorized access to Cards or Cardholder Accounts, Company’s failure to fulfill its obligations under this Agreement; or Company’s or a Cardholder’s violation of Applicable Law (collectively, “Card Losses”); provided, however, that your aggregate liability for Card Losses shall in no event exceed the amount earned by you in connection with the Program (“Your Program Earnings”). You will be required to reimburse FunnelDash for any such Card Losses, including any such Card Losses we are unable to recover from Cardholders, and we reserve the right to charge your Company Bank Account or Payment Card, or to deduct any Card Losses you owe us from the Program Account or any Reserve Account (but only up to Your Program Earnings).
If you: (a) breach this Agreement; (b) fail to pay any amounts due to us when owed; (c) experience an Insolvency Event or Change of Control; (d) provide us with false or incomplete information; (e) alter the fundamental nature of your business activities; or (f) pose an unacceptable regulatory, reputational, or financial risk to us, Issuer, or Cardholders, we may cease to authorize Transactions, refuse to issue new or replacement Cards, or demand immediate payment of any amounts you owe us. You will also reimburse us for our legal fees and all other reasonable costs we incur while collecting any outstanding amounts you fail to pay us. We and any Issuer have the right to debit or charge any amount you owe us, or the amount of any unpaid claim we have against you related to this Agreement from your Company Bank Account or Payment Card, the Program Account, or any Reserve Account.
Each party (a “Receiving Party”) will: (a) hold the other party’s (the “Disclosing Party”) Confidential Information in strict confidence and employ commercially accepted precautions to protect such Confidential Information at least as robust as the Receiving party employs with respect to its own Confidential Information; (b) not disclose the Disclosing Party’s Confidential Information to any third person, except as permitted in this Agreement; (c) not copy or reverse engineer any such Confidential Information; (d) not give access to the Disclosing Party’s Confidential Information to any employee, subcontractor, or agent that does not have a legitimate “need to know” such information; and bind each such Person to enter into a written confidentiality agreement that contains terms equivalent to this Section 7.1; and (e) not use the Disclosing Party’s Confidential Information for any purpose unrelated to fulfilment of the Receiving Party’s obligations under this Agreement. Confidential Information does not include information that is: (i) already known or possessed by the Receiving Party without an obligation of confidentiality other than under this Agreement (as demonstrated by records in existence at the time of disclosure); (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information (as demonstrated by records created contemporaneously with such independent development); or (iv) approved in writing by the Disclosing Party for disclosure. In any dispute with respect to these exclusions, the burden of proof will be on the Receiving Party to show that the exclusion applies. Each party may disclose the other party’s Confidential Information if required to do so by a Regulatory Authority; except that the Receiving Party will give reasonable notice to the Disclosing Party of such occurrence, and will limit disclosure of such information to the extent permissible by Applicable Law, and in such a manner as if such information was the Receiving Party’s own Confidential Information. Except as otherwise provided in this Agreement, within thirty (30) days of termination of this Agreement between the parties, the Receiving Party will, at the Disclosing party’s discretion: (y) return to the Disclosing Party all materials belonging to the Disclosing Party that constitutes the Disclosing Party’s Confidential Information; or (z) destroy the Disclosing Party’s Confidential Information and provide the Disclosing Party a written certification signed by an authorized officer of the Receiving party that all such information was destroyed. Each party may retain the other party’s Confidential Information to the extent required to comply with Applicable Law, or if instructed to do so by a Regulatory Authority; except that each party will continue to maintain the confidentiality of the other party’s Confidential Information pursuant to the terms of this Section 7.1.
You and FunnelDash will establish administrative, technical and physical safeguards (a “Security Program”) designed to: (a) ensure the security of any Program Information or Cardholder Information in your or our respective control or possession, or to which you have access through the Dashboard; (b) protect against any anticipated threats or hazards to the security or integrity of such Program Information or Cardholder Information; (c) ensure the proper disposal of Program Information; and (d) protect against unauthorized access to or use of Program Information. You will ensure that your Security Program complies with the applicable Security Guidelines at all times during the term of this Agreement, and as required by Applicable Law or pursuant to any terms that survive termination of this Agreement related to retention of Program Information.
In the event that there is a breach of security of Company resulting in actual or suspected unauthorized access to or use or disclosure of Program Information or Confidential Information (“Security Breach”), you will (a) immediately take all steps to immediately limit, stop or otherwise remedy such Security Breach; (b) notify us within 24 hours of the occurrence of any such Security Breach; and (c) provide a detailed description of the nature of the breach or loss and the steps taken to investigate the incident, secure Company’s systems or recover lost information, and prevent the recurrence of further security breaches or losses. Subject to FunnelDash’s and any Issuer’s approval (as applicable), you will coordinate any Security Breach notifications to Regulatory Authorities, Cardholders or other third parties with FunnelDash and Issuer. In addition to all remedies available under Applicable Law, FunnelDash and Issuer will be entitled to all available equitable remedies in the event of a Security Breach or threat of a Security Breach, and may seek injunctive relief from a court of competent jurisdiction without the necessity of proving actual Loss. If we experience a Security Breach involving loss of Company Information, we will notify you in accordance with our obligations under Applicable Law, and make commercially-reasonable efforts to mitigate the effects of the loss of such information.
We and Issuer have the right to conduct an audit of your Security Program and your Company Platform and you must fully cooperate with any requests for information or assistance from us, Issuer or any third- party auditor we assign to perform the audit.
You agree to comply with all Applicable Laws related to this Agreement, the Program, your FunnelDash Account, and any Cards or Cardholder Accounts. You specifically acknowledge that each Regulatory Authority with supervisory authority over any Issuer or us, including the FDIC and such other state and federal Regulatory Authorities has the authority to examine your compliance with Applicable Law, and your ability to perform your obligations under this Agreement. You also agree that Issuer may rely upon and enforce the terms of this Agreement against you as a third-party beneficiary to this Agreement.
We and our licensors own the incorporated FunnelDash Materials, and title to and ownership of the FunnelDash Materials will remain with us. You may only use the FunnelDash Materials as provided to you for the purposes set forth in this Agreement. You may not modify, reverse engineer, create derivative works from, or disassemble the FunnelDash Materials, or register, attempt to register, or claim ownership in the FunnelDash Materials or any portions of the FunnelDash Materials. When we approve your FunnelDash Account, we grant you a royalty-free, non-exclusive, revocable, and nontransferable license to use the FunnelDash Materials as provided through the FunnelDash Platform and solely as permitted by this Agreement. This license terminates immediately upon termination of this Agreement or closure of your FunnelDash Account, or unless terminated earlier by us. We may use any Feedback about the FunnelDash Materials, the FunnelDash Platform and the Services, or new features and functionality of the FunnelDash Platform freely and without restriction. Except where specifically notified by us, FunnelDash will not compensate or credit you or your Personnel for Feedback provided to us. We may make new features and functionality to you by invitation; and if you accept the invitation, you agree to provide Feedback for such access.
You grant us and any Issuer a nonexclusive, revocable, worldwide, royalty-free right during the term of this Agreement to use the Company name, and Company Marks as set forth in the Agreement. We may use the Company Marks as provided to us to fulfill our obligations under this Agreement, on the FunnelDash website to identify you as our customer. You agree that any Issuer will be a third-party beneficiary of the rights granted to FunnelDash under this Section 9.2. Title to and ownership of the Company Marks will remain with you. This license terminates immediately upon termination of this Agreement or unless terminated earlier by you. You represent and warrant that the Company Marks do not infringe on the IP of any third party, and that you have obtained licenses to use all IP shared with you or otherwise used in fulfillment of your obligations under this Agreement.
This Agreement is not a work made-for-hire agreement with regard to either party. Except for the express licenses granted in this Section 9, neither party is granting or assigning to the other party, or its Affiliates any right, title, or interest, express or implied, in or to the other party’s IP, or the IP of any third party to which a party has been granted a license (including Issuer’s Marks); and each party reserves all rights in its IP, and to the IP rights granted to it by any third party.
This Agreement is effective when you submit your Program application and continues until we or you terminate the Program or your FunnelDash Account in accordance with these terms. You may terminate this Agreement by providing Notice to us, paying all amounts owed by you, and ceasing to use the Services. We may decline to close your FunnelDash Account if the Program Account has a negative balance, if any Funds that we are holding on your behalf are subject to a hold, lien or other restriction, or if we believe that you are terminating the Program or closing your FunnelDash Account to evade any legal or regulatory requirement or investigation. We may terminate this Agreement, your Program and close your FunnelDash Account at any time and for any reason by providing you Notice. If we believe you have breached or are likely to breach the terms of this Agreement or any applicable Supplemental Terms, or if required by Issuer, a Regulatory Authority or pursuant to Applicable Law, we may terminate your Program and this Agreement, or close your FunnelDash Account without prior Notice to you. You are responsible for all Transactions, Program Fees, Penalties, Card Losses and all other Losses caused by your actions or inactions or for which you are otherwise liable pursuant to the terms of this Agreement prior to termination, and for any costs we may incur in the process of terminating your Program, or closing your FunnelDash Account.
Upon termination of this Agreement: (a) unless otherwise agreed in writing by FunnelDash, you will promptly return to FunnelDash or destroy all FunnelDash Materials and other FunnelDash Confidential Information made available to you in connection with this Agreement, regardless of form; (b) all licenses granted to you under this Agreement will immediately terminate; and (c) any applicable Supplemental Terms will immediately terminate (except for any sections that explicitly survive termination). No termination of this Agreement will relieve you of your liability for the payment or performance of any obligation accrued by you prior to the effective date of such termination, including any indemnification obligations arising under Section 12, and regardless of whether we have asserted such indemnification claim before termination.
Sections 1 (Definitions and Rules of Construction), 4.4 (Program Termination and Suspension), 5.3 (Card Ownership), 5.7 (Program Information Ownership), 6 (Financial Terms), 7 (Confidentiality and Data Security), 8 (Compliance with Applicable Law; Examination; Enforcement of Terms), 9 Intellectual Property), 10 (Term and Termination), 12 (Indemnification), 13 (Limitation of Liability), 14 (Disclaimer), 15 (Additional Terms) and this Section 11, together with all other provisions of this Agreement or any Supplemental Terms incorporated in this Agreement giving rise to continuing obligations of the parties, will survive termination of this Agreement.
We will, at our own expense, hold harmless, defend, protect, and indemnify you and your Affiliates (the “Customer Indemnified Parties”) from and against all Losses incurred by a Customer Indemnified Party resulting from a Third-Party Claim against a Customer Indemnified Party caused or incurred by, resulting from, arising out of, or related to: (a) any actual or alleged infringement, violation, or misappropriation of any U.S.-registered patent, trademark or copyright by us; (b) our fraud or intentional misconduct; (c) our violation of Applicable Law or the Rules or (d) Card Losses in excess of Your Program Earnings.
You will, at your own expense, hold harmless, defend, protect, and indemnify us, Issuer and our Affiliates (the “FunnelDash Indemnified Parties”) from and against all Losses incurred by a FunnelDash Indemnified Party resulting from a Third-Party Claim against a FunnelDash Indemnified Party caused or incurred by, resulting from, arising out of, or related to: (a) your breach of any obligation, representation, warranty or covenant in this Agreement; (b) any actual or alleged infringement, violation, or misappropriation of a third party’s IP or proprietary rights by you; (c) your gross negligence, fraud or intentional misconduct; (d) your violation of Applicable Law or the Rules; (e) a Security Breach caused by you, or (f) your actions or omissions with respect to your Customers. You further agree to indemnify Issuer against any Third-Party Claims against Issuer by any Cardholder or other third party based on your actions or inactions related to your obligations under this Agreement.
13.1 UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSSES, DAMAGES, LOST PROFITS OR LOST REVENUES (EVEN IF SUCH LOSSES ARE FORESEEABLE, AND REGARDLESS OF WHETHER YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES) RESULTING FROM, ARISING OUT OF, OR RELATED TO YOUR USE OR INABILITY TO USE THE FunnelDash PLATFORM, CARDS OR THE SERVICES. WE ARE NOT LIABLE TO YOU, YOUR CUSTOMERS, YOUR PERSONNEL OR YOUR AFFILIATES, AND WE DENY ANY RESPONSIBILITY WHATSOEVER FOR LOSSES: (A) ARISING FROM UNAUTHORIZED ACCESS TO OR USE OF YOUR FunnelDash ACCOUNT, OR ANY CARDHOLDER ACCOUNTS OR CARDS; OR (B) YOUR FAILURE TO IMPLEMENT APPROPRIATE DATA SECURITY AND ANTI-FRAUD POLICIES AND PROCEDURES IN RELATION TO YOUR PROGRAM OR YOUR FunnelDash ACCOUNT.
13.2 WE FURTHER DENY RESPONSIBILITY FOR ALL LIABILITY AND DAMAGES TO YOU, YOUR PERSONNEL, CUSTOMERS, OR ANY THIRD PARTIES CAUSED BY (A) MANAGEMENT OF YOUR PROGRAM, OR ACCESS TO OR USE OF YOUR FunnelDash ACCOUNT IN MANNER INCONSISTENT WITH THIS AGREEMENT OR THE INSTRUCTIONS OR OTHER INFORMATION WE PROVIDE TO YOU; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR FunnelDash ACCOUNT, THE DEVELOPER TOOLS, YOUR DEVELOPER KEYS, THE FunnelDash PLATFORM, CUSTOMER INFORMATION, CARDHOLDER INFORMATION, OR ANY OTHER PROGRAM INFORMATION; (C) SUSPENSION OR TERMINATION OF THE PROGRAM, THE SERVICES, OR ANY CARDHOLDER ACCOUNT FOR ANY REASON; (D) ANY BUGS, VIRUSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE FunnelDash PLATFORM, THE DEVELOPER TOOLS OR THE SERVICES; (E) ANY ERRORS, INACCURACIES, OMISSIONS, OR LOSSES IN OR TO ANY COMPANY INFORMATION PROVIDED TO US BY YOU; (F) ANY CONTENT PROVIDED BY YOU; (G) YOUR USE OF OR ACCESS TO ANY CUSTOMER INFORMATION, CARDHOLDER INFORMATION, TRANSACTION INFORMATION, OR OTHER PROGRAM INFORMATION, OR (G) ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT BY YOU OR ANY THIRD PARTY. OUR MAXIMUM AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL OTHER DIRECT OR INDIRECT DAMAGES WILL BE THE LESSER OF: (Y) THE PROGRAM FEES YOU PAID US DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO YOUR CLAIM FOR DAMAGES; AND (Z) $250,000; PROVIDED, HOWEVER THAT WITH RESPECT TO OUR INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, OUR MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ALL DIRECT OR INDIRECT DAMAGES WILL BE THE LESSER OF (Y) THE PROGRAM FEES YOU PAID US DURING THE TWENTY-FOUR MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO YOUR CLAIM FOR DAMAGES; AND (Z) $250,000. THESE LIMITATIONS ON OUR LIABILITY TO YOU, YOUR PERSONNEL, YOUR CUSTOMERS, OR ANY THIRD PARTIES WILL APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH YOUR CLAIM IS BASED, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY OR BASIS.
13.3 YOU FURTHER ACKNOWLEDGE THAT ISSUER HAS NO LIABILITY WHATSOEVER TO YOU, YOUR PERSONNEL, ANY CUSTOMER, OR ANY THIRD PARTY PURSUANT TO THE TERMS OF THIS AGREEMENT, AND ANY CLAIMS BROUGHT BY YOUR CUSTOMERS RELATED TO CARDHOLDER ACCOUNTS MUST BE BROUGHT DIRECTLY AGAINST ISSUER PURSUANT SOLELY TO THE TERMS OF THE CARDHOLDER AGREEMENTS, APPLICABLE LAW, AND THE RULES.
UNLESS CLEARLY STATED ELSEWHERE IN THIS AGREEMENT, FunnelDash AND ISSUER MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE FunnelDash PLATFORM, CARDS OR THE SERVICES IT PROVIDES UNDER THIS AGREEMENT, INCLUDING WARRANTIES OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE TO AND NON-INFRINGEMENT OF ANY TECHNOLOGY OR IP PROVIDED BY FunnelDash, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. FunnelDash SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE FunnelDash PLATFORM OR ITS SERVICES, OR THE SERVICES OF ANY THIRD PARTY PROVIDED IN CONNECTION WITH THIS AGREEMENT, WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT SUCH SERVICES WILL BE COMPATIBLE WITH, OR OPERATE IN, ANY COMPUTER OPERATING SYSTEM, NETWORK OR SYSTEM CONFIGURATION, OR ANY OTHER ENVIRONMENT.
We will provide Notices regarding your use of the FunnelDash Platform, your Program Account, Cards, Cardholder Accounts and the Services to you and your Personnel electronically through the Dashboard, via email, push notification, or via text or SMS to the mobile phone number provided to us by you, or your Personnel. You may not apply for a Program, access the FunnelDash Platform or use the Services unless you consent to receive Notices electronically. You may only withdraw consent to receive Notices electronically by terminating the Program and closing your FunnelDash Account. These Notices may include alerts about Services or Transactions, and may allow your Personnel to respond with information about Transactions or your FunnelDash Account. You authorize your Personnel to take any available actions, subject to limitations based on permissions and authorization. Your Personnel may elect to not receive certain Notices via text or SMS, but this will limit the use of certain Services and may increase the financial risks to you including Losses caused by unauthorized access to your FunnelDash Account, or lost, stolen or compromised Cards or Cards Accounts. We may also send text or SMS messages to your Personnel to allow us to verify their identity, to provide other information about your FunnelDash Account, Cards, and Cardholder Accounts and for other purposes that we identify and that are available through your FunnelDash Account or the FunnelDash Platform. You and your Personnel are required to maintain updated web browsers, computers, and mobile device operating systems to receive Notices. You and your Personnel are responsible for all costs imposed by their respective Internet or mobile service providers for sending or receiving Notices electronically.
We will send Important Notices regarding payments, Program Fee changes, legal terms, and termination or suspension of the Program or your FunnelDash Account to Administrators through the Dashboard or by email and such Notices will be considered received 24 hours after we send them.
You will promptly provide us with copies of any Cardholder complaints, lawsuits or other legal causes of action you receive relating to your obligations under this Agreement, or that would reasonably be expected to affect us, our Affiliates, Issuer, or the Network. We may reply to and comply with any legal order that we receive from any court or Regulatory Authority, and we may hold or deliver any Funds we or Issuer hold on your behalf in response to such legal order. If permitted by Applicable Law, we will give you Notice of such legal order in accordance with Section 15.1. We are not responsible for any Losses of any nature that result from the actions we take or do not take in response to such legal order.
This Agreement does not benefit or create any right or cause of action in or on behalf of any Person other than Company and FunnelDash.
Nothing contained in this Agreement will be construed as creating or constituting a partnership, joint venture or agency between the parties to this Agreement. Each party will be deemed an independent contractor with respect to the other party in fulfillment of their respective obligations.
You may not assign this Agreement to any third party, and your rights, privileges, duties and obligations in this Agreement may not be assigned or delegated by you to any Subcontractor without our prior written consent. If we approve the assignment of any of your obligations to a Subcontractor, you will enter into an agreement with each such Subcontractor that contains terms substantially equivalent to this Agreement and you will otherwise ensure that each Subcontractor complies with the terms of this Agreement, the Rules, and Applicable Law in fulfillment of your obligations or duties. All liabilities arising under or as a consequence of the acts or omissions of any Subcontractor in connection with this Agreement will be solely yours and not those of any Subcontractor. We may transfer, sell, assign the Cardholder Accounts and Cards, this Agreement or any of our other rights under this Agreement without Notice to you.
We may revise or add additional terms to this Agreement at any time, and we will provide you Notice of any such changes by posting an updated version of these terms to the FunnelDash legal page located at https://www.FunnelDash.com/legal or by delivering Notice to you electronically, and your continued use of your FunnelDash Account will constitute acceptance of the amended agreement terms.
Any dispute, controversy or claim resulting from a party’s rights and obligations under this Agreement, whether in contract, tort, equity or otherwise, will be governed by, construed, interpreted, and enforced in accordance with the laws of the state of California; and, if the arbitration provisions in Section 15.10 are held to be unenforceable, will be subject to the exclusive jurisdiction of the state and federal courts located in Austin, TX.
This Agreement (together all other documents, agreements and schedules referred to herein, including, without limitation, the Fee Schedule) embodies the entire understanding of the parties and supersedes in their entirety all prior communication, correspondence, and instruments, and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter of this Agreement.
FunnelDash may refer to Company in customer reference lists and sales presentations as a customer and Program partner.
Any disputes, claims or controversies (“Disputes”) that the parties are unable to resolve by mutual consultation will be determined by arbitration in Austin, Texas before a single arbitrator. The arbitration will be administered by JAMS. For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims less than or equal to $250,000, the JAMS Streamlined Arbitration Rules in effect at the time the arbitration is commenced will apply. The arbitrator will apply the substantive law of the State of California, exclusive of its conflict or choice of law rules. If JAMS is no longer in business, or refuses or declines to administer any Dispute between the parties brought before it, either party may petition the United States District Court for the Northern District of California to appoint the arbitrator. Nothing in this Section 15.10 will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to the terms of this Agreement. Either party may commence arbitration by providing to JAMS and the other party to the Dispute a written demand for arbitration, setting forth the subject of the Dispute and the relief requested. The existence of a Dispute and the observance by the parties of the Dispute resolution procedures in this Section 15.10 will not: (a) excuse any party from continuing to perform its obligations under this Agreement; or (b) suspend any obligation to pay any amount otherwise due and payable under this Agreement unless that obligation or the amount (to the extent in Dispute) is itself the subject of the Dispute. Nothing in this Agreement affects the right of a party to institute proceedings to seek urgent injunctive or declaratory relief in respect of a Dispute or any matter arising under this Agreement. If any Dispute leads to an arbitration or other legal proceeding to resolve such Dispute, the prevailing party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded. To the extent permitted by Applicable Law, all arbitration proceedings will be subject to Section 7 [Confidentiality].
Any arbitration or other legal proceeding under this Agreement will only be on an individual basis. Neither party may form with other arbitrators or parties to form a consolidated or class action. Each party waives its rights to participate in a consolidated action against the other party, and each party irrevocably waives its right to a jury trial in any Dispute, claim, action or proceeding arising out of this Agreement.
Neither party will be liable for delay or failure to perform, in whole or in part, any of its duties under this Agreement due to factors beyond its control, including lack or failure of raw materials, strike, lockout or other labor disturbance, sabotage, terrorism, acts of war or other armed conflict, acts of God, health emergencies, earthquake, storm, fire, electrical supply or telecommunications failure; except that this Section 10.13 will not (a) eliminate a party’s obligations to pay any amounts owed to the other party under this Agreement, or (b) limit the right of any party to this Agreement to make any claim against third parties for any damages suffered due to any such event.
All amounts stated in this Agreement are inclusive of goods and services tax, Value Added Taxes, and any other applicable taxes on fees or services. You will be solely responsible for calculating any sales, use or other taxes applicable to you or to your Customers resulting from Program activities, if any, and determining any filings required to be made with any Regulatory Authority in connection with this Agreement.
The parties do not intend the rights conferred upon both parties to this Agreement to be exclusive of each other or of any other rights and remedies of both parties under this Agreement, under Applicable Law, the Rules, or in equity. Rather, each and every right of both parties to this Agreement, under Applicable Law and the Rules, or in equity is cumulative and concurrent and in addition to all other rights of the parties. No waiver by any party of any breach of any provision of this Agreement to be performed by a party will be construed as a waiver of any succeeding breach of the same or any other provision of this Agreement. We do not waive our rights by delaying or failing to exercise them at any time.
If any provision of this Agreement, or the application of any such provision to any person or circumstance, is invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, will not be affected by such invalidity or unenforceability, and the Parties expressly authorize any court of competent jurisdiction to modify any such provision in order that such provision will be enforced by such court to the fullest extent permitted by Applicable Law.
If you desire to use additional features of the Services not described in this Agreement, such as a Cardholder rewards program or integration with you Company App, or if we determine that your Program Specifications or your business activities pose unusual risk to FunnelDash, Issuers, or Customers; or if required by an FunnelDash Partner, we may require supplemental agreements between us, Issuer and you (“Supplemental Terms”). We may add or change the applicability of these requirements and the Supplemental Terms at any time. You may also be required to enter into such Supplemental Terms in order to access or continue to use the FunnelDash Platform and the Services if you seek to alter or expand your Program specifications. For example, we may require you to provide us with a Reserve to secure your liabilities to us, or we may require you to enter into a security agreement or provide a security interest in your assets for certain Program types. We will provide any Supplemental Terms separately from this Agreement.