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This Commercial Entity User Agreement (“Commercial Entity Agreement” or “CEA”) is provided to Disbursers who use the PayPal Services in the United States. This CEA constitutes your separate legally binding contract between (1) you, as a Disburser, and (2) The Bancorp Bank (“Member”). In this CEA “we”, “us” and “our” also refer to Member. Disburser has agreed to a merchant agreement (the “Merchant Agreement”) with PayPal (or its affiliates) (collectively, “PayPal”), which sets forth requirements regarding the PayPal Services and are incorporated into this CEA by reference. Member may terminate its sponsorship services provided by Member to PayPal and you in connection with your use of the PayPal Services.
By signing the Addendum you agree to the terms and conditions of this CEA and any documents incorporated by reference. Disburser further agrees that this CEA forms a legally binding contract between it and Member. Any rights not expressly granted herein are reserved by Member.
1. Purpose of this CEA. When you use the PayPal Services to disburse your funds via an eligible card branded with a Card Network trademark (“Card Payment”), Visa U.S.A., Inc. and Visa International (“Visa”) and MasterCard International Incorporated (“MasterCard”) (individually, a “Card Network” and collectively the “Card Networks”) require that you enter into a direct contractual relationship with a bank who is a member of the Card Networks. By entering into the CEA, you are fulfilling the Card Networks’ rule of entering into a direct contractual relationship with a member bank, and you are agreeing to comply with Card Networks rules as they pertain to the Card Payments you initiate through the PayPal Services.
2. Card Networks Rules. You agree to follow all requirements of this in connection with each Card Payment and to comply with Visa and MasterCard, and all other applicable Card Networks’ Rules.
A. Access to Cardholder Data. You acknowledge that you may have access to Cardholder Data (defined as a cardholder’s account number, expiration date, and CVV2) for Card Payments through the PayPal Services. If you receive Cardholder Data in connection with the PayPal Services, you agree that you will not (i) use the Cardholder Data for any purpose other than for Card Payments, (ii) use the Cardholder Data for any purpose that you know or should know to be fraudulent or in violation of any Card Networks’ Rules, (iii) sell, purchase, provide or exchange in any manner or disclose Cardholder Data to anyone other than your acquirer, Visa or MasterCard (as applicable) or in response to a government request. If you receive Cardholder Data in connection with the PayPal Services, you agree (x) to promptly notify Member (or another Card Network member if so appropriate) and PayPal of such and (y) at all times to be compliant with the Payment Card Industry Data Security Standards with respect to such Cardholder Data.<
B. PayPal Customer Identification. You agree to prominently and unequivocally inform your customers of your identity at all points of interaction. For online transactions, you must include the address of your permanent establishment on your website.
C. Compliance with Law; Privacy Policy Display. You will not access and/or utilize the PayPal Services for illegal purposes and will not interfere or disrupt networks connected with the PayPal Services. For online transactions, you agree to display your consumer privacy policy on your website as well as your security method for transmission of payment data.
D. Minimum or Maximum/Surcharges; Taxes. “Nothing in the Agreement shall prohibit Disburser from surcharging in connection with a PayPal transaction as a condition of accepting Visa and MasterCard Cards; provided, however, Disburser agrees to comply with applicable law and/or rules of the payment networks with respect to such surcharging. Disburser acknowledges that PayPal shall not provide Disburser with information regarding the funding source for any transaction processed through the PayPal Services. You may not add tax to any transaction unless so permitted by applicable law, and in such case, only if included in the transaction amount and not collected separately.
3. Payment Instructions: You authorize and direct us to receive and send all amounts due between us and you hereunder to PayPal, who shall serve as your agent for purposes of the PayPal Services and shall be responsible for receiving and disbursing such amounts on your behalf.
4. Term and Termination. This CEA is effective upon the date you agree to use the PayPal Services, and continues so long as you use the PayPal Services. This CEA will terminate automatically upon any termination or expiration of your Merchant Agreement provided that those terms which by their nature are intended to survive termination (including indemnification obligations and limitations of liability) shall survive. This CEA may be terminated by Member at any time based on (i) a breach of any of your obligations under this CEA, the Merchant Agreement, or (ii) the termination of the sponsorship relationship between PayPal and Member.
5. Indemnification. You agree to indemnify and hold Member harmless from and against all losses, liabilities, damages and expense resulting from and/or arising out of: (a) any breach of any warranty, covenant or agreement or any misrepresentation by you under this CEA; (b) Your or your employees’ negligence or willful misconduct, in connection with Card Payments; (c) any third party indemnifications Member is obligated to make as a result of PayPal customer’s actions (including indemnification of any Card Networks or card issuing bank).
Member agrees to indemnify and hold you harmless from and against all losses, liabilities, damages and expenses resulting from and/or arising out of: (a) any breach of any warranty, covenant, or agreement or any misrepresentation by each of us under this; or (b) our or our employee’s gross negligence or willful misconduct in connection with this.
6. Warranty Disclaimer. This CEA is a service agreement. We disclaim all representations or warranties, express or implied, made to you or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise of any services or any goods provided incidental to the services provided under this CEA to the extent permitted by law.
7. Limitation of Liability. Notwithstanding anything in this CEA to the contrary, in no event shall Member, or its affiliates or any of its respective directors, officers, employees, agents or subcontractors, be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. Notwithstanding anything in this CEA to the contrary, in no event shall we be liable or responsible for any delays or errors in our performance of the services caused by our service providers or other parties or events outside of our reasonable control, including PayPal. Notwithstanding anything in this CEA to the contrary, Member’s cumulative liability for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (including those arising out of or related to this CEA) and regardless of the form of action or legal theory and whether or not arising in contract or tort (excluding negligence and willful misconduct) shall not exceed the total volume of all transactions, expressed as a U.S. dollar amount, processed under this CEA.
8. Governing Law; Arbitration. Governing law with respect to this CEA shall be Delaware, U.S. Any dispute with respect to this CEA between you and The Bancorp Bank, as Member, including a dispute as to the validity or existence of this CEA and/or this clause, shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association. Venue for any such arbitration shall be New Castle County, Delaware.
9. Assignment; Amendments. This CEA may only be assigned in connection with a permitted assignment under the Merchant Agreement. The Member may assign their rights under this CEA without your consent. This CEA may be amended by you only upon mutual written agreement. Member may amend this CEA at any time via 30 days’ notice from Member.
10. Waiver. The failure of a party to assert any of its rights under this CEA, including the right to terminate this CEA in the event of breach or default by the other party, will not be deemed to constitute a waiver by that party of its right to enforce each and every provision of this CEA in accordance with its terms.
11. Relationship between the Parties. No agency, partnership, joint venture or employment relationship is created between you and Member by way of this CEA. In the performance of their respective obligations hereunder, the parties are, and will be, independent contractors. Neither party will bind, or attempt to bind, the other party to any contract or the performance of any obligation, and neither party will represent to any third party that it has any right to enter into any binding obligation on the other party’s behalf.
12. Severability. Whenever possible, each provision of this CEA will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof will be prohibited by or determined to be invalid by a court of competent jurisdiction, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this CEA.
