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Payment Services Agreement

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Updated Payment Services Agreement

Effective Date: The Payment Services Agreement is effective December 23, 2019 for Merchants who signed up before November 19, 2019 or immediately for all new Merchants who signed up on or after November 19, 2019.

This Braintree Payment Services Agreement, and the agreements, policies, and documents incorporated herein, (this “Agreement”), is entered into by and between PayPal, Inc., a Delaware corporation whose address is 2211 North First Street, San Jose, CA 95131 (“Braintree,” “PayPal,” “we,” or “our”) and the entity or individual who enters into this Agreement (“Merchant” or “you”). This Agreement sets out the terms and conditions under which you may utilize the Braintree Payment Services.

This Agreement becomes a legally binding contract and is effective as of the earliest date you do any of the following (the “Effective Date”):

Create an account on the Braintree website; Accept this Agreement online; or Begin using the Braintree Payment Services. This Agreement, as it may be amended from time to time, will be available on the “Legal” tab on the Braintree website. In addition to the terms of this Agreement, you agree to be bound by the terms of our Privacy Policy and Acceptable Use Policy, as well as your applicable Bank Agreement(s), which are incorporated herein by this reference.

Please be advised that this Agreement contains provisions, including an Agreement to Arbitrate, that govern how claims you and Braintree have against each other are resolved, which will, with limited exception, require the parties to submit claims they may have against one another to binding and final arbitration. Under the Agreement to Arbitrate, the parties will (1) only be permitted to pursue claims against each other on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

Section 1 — Braintree Payment Services

1.01 “Braintree Payment Service(s)” means:

  • (a) “Payment Processing Services” means the payment processing services offered by Braintree which provide merchants with the ability to accept credit cards, debit cards, and other payment methods on a website or mobile application. These services include Gateway Services, a Bank-sponsored Merchant Account, Fraud Maintenance Tools (each as defined in this Agreement), recurring billing functionality, payment card storage, foreign currency acceptance, white glove customer support, and other software, APIs and services and technology as described on the Braintree website.
  • (b) “Gateway Services” means the gateway services offered by Braintree which provide Merchants with the software and connectivity required to allow real-time secure data transmission for processing of credit card, debit card and certain other available payment method payments on a website or mobile application. The Gateway Services include those additional products and services provided by Braintree, including but not limited to the Forwarding Services, Grant Services and ACH Services (“PayPal Products and Services”), which are provided subject to the additional PayPal Products and Services as set forth on the Braintree website which are incorporated into this Agreement by reference. In addition, the Gateway Services include certain payment technology services provided by third parties that are used to facilitate your processing of credit and debit card payments (“Payment Technology Services”). In order to use these services, you agree to the applicable Payment Technology Services terms as set forth on the Braintree website which are incorporated into this Agreement by reference. You acknowledge and agree that the Payment Technology Services are provided solely by the relevant third party (and not PayPal) as set forth in the applicable Payment Technology Services terms, and that PayPal will under no circumstances be responsible or liable for any damages, losses or costs whatsoever suffered or incurred by you resulting from any Payment Technology Services.
  • (c) “Fraud Maintenance Tools” means the optional fraudulent transaction management tools made available as part of the Braintree Payment Services that, if enabled by you or Braintree on your behalf, allow you to access fraudulent transaction management features to help detect fraudulent transactions based on the settings you may adopt, as described in more detail on the Braintree website (“Fraud Maintenance Tools”). If you elect to enable and use or disable the Fraud Maintenance Tools, you are responsible for determining which tools to use and for setting or modifying your own filter rules, which instruct us which Transactions to accept and decline on your behalf. If you set these filter rules too restrictively, you might lose sales volume. It is your responsibility to monitor your filter rules and settings on an ongoing basis. We may suggest filters and settings that may be appropriate for your business, based on factors such as your business profile and transaction history, however it is your responsibility to evaluate the usefulness and risk of any information, product or service. It is your sole responsibility to provide any necessary notices and disclosures, and obtain any required consents, on the use of the Fraud Maintenance Tools to your Customers on your website or mobile application. You shall use the Fraud Maintenance Tools in accordance with the applicable guides and other documentation made available by us, and you shall not use or permit others to use information obtained through the use of the Fraud Maintenance Tools for any purpose other than in conjunction with the Payment Processing Services and in a manner described in the applicable documentation for the Fraud Maintenance Tools. You acknowledge and agree that, subject to Section 7.03, Braintree does not represent or warrant that the Fraud Maintenance Tools are error free or that they will identify all fraudulent transaction activity. In addition, Braintree shall not be liable whether a Transaction is accepted or rejected using the Fraud Maintenance Tools. You are responsible for your optional use of the Fraud Maintenance Tools, including any filters or settings you enable.

Section 2 — Fees, Payouts, Taxes and Account Activity

2.01 Fees

In exchange for us providing you with the Braintree Payment Services, you agree to pay us the fees, including applicable transaction, multi-currency and Chargeback fees, as listed in the fee schedule, available at https://www.braintreepayments.com/braintree-pricing, and incorporated herein by this reference. We reserve the right to revise our fees at any time, subject to a thirty (30) day notice period to you prior to the new fees taking effect. Interest shall accrue at the lower rate of 1.5% per month, or the maximum amount permitted by law, on all overdue amounts. In the event that you have a good faith dispute as to the amounts due, you agree to pay the undisputed amounts. Interest shall not accrue on any disputed amounts so long as you pay such amounts within thirty (30) calendar days after resolution of the dispute.

2.02 Payment of Fees, Payouts, Right to Set-off and Receipt of Customer Payments

Subject to the terms of this Agreement, Braintree will instruct the Acquirer to remit to your Bank Account or to a Hyperwallet Settlement Account (if available to you), as duly nominated by you, all amounts due to you from your Transactions, minus any fees, Reversals, Invalidated Payments, Chargebacks, Refunds, setoffs, recoupments or other amounts that you owe to Braintree under this Agreement. You authorize us (any related notice and demand are hereby expressly waived) to set-off, recoup and to appropriate and to apply any and all balances or funds or other amounts we may owe you against and on account of your obligations, whether such obligations are liquidated, unliquidated, fixed, contingent, matured or unmatured. If the Payout is not sufficient to cover the amounts due, without limiting our other rights and remedies (all of which are cumulative), you agree that we may debit your Bank Account for the applicable amounts, and/or recoup or set-off the applicable amounts against future Payouts. Upon Braintree’s request, you agree to provide Braintree with all necessary bank account routing and related information and grant Braintree permission to debit amounts due from your Bank Account (“Debit Authorization”). In the event Merchant does not grant Braintree Debit Authorization, Merchant shall pay Braintree an additional sum equal to 5% of the amount intending to be debited, but not to exceed one-thousand ($1,000) dollars, for each failed debit attempt. The parties agree that the damages that would be incurred by Braintree as a result of your failure to grant Braintree Debit Authorization are difficult to calculate, and the fee described above is intended as a reasonable approximation of such damages and not as a penalty.

You represent and warrant to Braintree that each transaction that you process using the Braintree Payment Services is solely in payment for your provision of bona fide goods or services (including charitable services) to your Customers. To the extent any Transaction funds are received by Braintree from your Customers, you hereby designate Braintree, and Braintree hereby agrees to serve, as your limited agent for the sole purpose of receiving such payments on your behalf from your Customers. You agree that upon Braintree receiving payment from a Customer: (a) you shall be deemed to have received payment from such Customer; (b) such Customer’s obligation to you in connection with such payment shall be satisfied in full; (c) any claim you have for such payment against Customer shall be extinguished and (d) you are obligated to deliver the applicable goods or services to the Customer, in each case regardless of whether or when Braintree instructs Acquirer to remit such payment to you. Any receipt provided to the Customer shall be binding on you and shall satisfy all applicable regulatory requirements. This paragraph states the entirety of Braintree’s duties as your agent for receipt of payment, and no other duties shall be implied by Braintree’s undertaking to act in that capacity. This paragraph does not limit in any way Braintree’s rights against you or any funds held by Braintree, including any right of set-off or security interest in such funds.

2.03 Taxes

Merchant shall pay, indemnify, and hold Braintree harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on Braintree’s income, and (ii) all government permit fees, customs fees and similar fees which Braintree may incur with respect to this Agreement. Such taxes, fees and duties paid by Merchant shall not be considered a part of, a deduction from, or an offset against, payments due to Braintree hereunder.

2.04 Account Activity

With respect to Merchant’s account activity accessible through the Braintree Payment Services, Merchant may report to Braintree any discrepancy relating to Transactions, Payouts, fees and amounts owed by Merchant under this Agreement. Merchant shall notify Braintree in writing of any such discrepancy within ninety (90) days of the date the data is made available to Merchant through the Braintree Payment Services. Following the expiration of this period, Merchant’s account activity shall be deemed as accepted and agreed by Merchant and Braintree shall have no obligation to correct any errors or discrepancies identified after such period.

Section 3 —Restricted Activities, Representations and Warranties, American Express Card Acceptance

3.01 Restricted activities

In connection with your use of the Braintree Payment Services, you must comply with the Braintree Acceptable Use Policy: https://www.braintreepayments.com/legal/acceptable-use-policy.

You agree that you will not:

  • (a) Breach this Agreement, the Bank Agreement, or any other agreement that you have entered into with us in connection with the Braintree Payment Services;
  • (b) Violate any federal, state, or local laws, rules, or regulations applicable to your business;
  • (c) Violate any rule, guideline, or bylaw of any of the Networks (the “Network Rules”), as they may be amended by the Networks from time to time. Some of the Network Rules are available for Visa, Mastercard, American Express, and Discover.
  • (d) Fail to provide us with any information that we reasonably request, in connection with this Agreement or your use of the Braintree Payment Services, about you or your business activities, including updated business records or financial statements, or provide us with false, inaccurate or misleading information;
  • (e) Refuse to cooperate in a legal investigation or audit that may be required by the Networks in connection with this Agreement or your use of the Braintree Payment Services;
  • (f) Integrate or use any of the Braintree Payment Services without complying with our requirements;
  • (g) Utilize recurring billing or card on file functionality without properly complying with Network Rules, applicable law (including but not limited to the Electronic Funds Transfer Act (Reg E)), including obtaining your Customer’s consent to be billed in such a manner, obtaining your Customer’s consent to store their card on file for future or recurring transactions and making available a mechanism for your Customer to delete their card on file;
  • (h) Submit any Transaction for processing through the Braintree Payment Services which does not represent a bona fide, permissible Transaction as outlined in this Agreement and in the Network Rules, or which inaccurately describes the product or services being sold or the charitable donations being made;
  • (i) Process Transactions or receive payments on behalf of any other party, or redirect payments to any other party;
  • (j) Display with unequal size or prominence, show preference for, or discriminate against one card brand or type over another, including your refund policies for purchases; and
  • (k) Bill or collect from any cardholder for any purchase or payment on the card unless you have the right to do so under the Network Rules.

3.02 Representations and Warranties by Merchant

Merchant has the full power and authority to execute, deliver and perform this Agreement. This Agreement is binding and enforceable against Merchant and no provision requiring Merchant’s performance is in conflict with its obligations under any agreement to which Merchant is a party.

Merchant is duly organized, authorized and in good standing under the laws of the state, region or country of its organization and is duly authorized to do business in all other states, regions or countries/regions in which Merchant’s business operates.

3.03 Additional Terms for American Express Card Acceptance

  • a. American Express may use the information obtained in your application at the time of setup to screen and/or monitor you in connection with card marketing and administrative purposes.
  • b. You may be converted from this Agreement to a direct card acceptance agreement with American Express if you reach certain monthly sales volumes. Upon conversion, (i) you will be bound by American Express' then-current Card Acceptance Agreement; and (ii) American Express will set your pricing and other fees for American Express Card acceptance.
  • c. By accepting these terms, you agree to receive commercial marketing communications from American Express. You may opt out by notifying Braintree via email at support@braintreepayments.com. If you opt out of commercial marketing communications, you will still receive important transactional or relationship messages from American Express.
  • d. American Express shall be a third party beneficiary of this Agreement for purposes of American Express Card acceptance. As a third party beneficiary, American Express shall have the right to enforce directly against you the terms of this Agreement as related to American Express Card acceptance. You acknowledge and agree that American Express shall have no responsibility of liability with regard to Braintree’s obligations to you under this Agreement.
  • e. American Express may conduct an audit of you at any time, for the purpose of determining compliance with the American Express Network Rules.
  • f. You authorize Braintree to submit transactions to, and receive settlement from, American Express, and to disclose transaction and merchant information to American Express to perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes and important transactional or relationship communications.
  • g. Merchant may terminate its acceptance of American Express at any time upon notice.

Section 4 — Liability for Invalidated Payments and other Liabilities

You are liable for all claims, expenses, fines and liability we incur arising out of:

  • (a) a Chargeback, Refund, over-payment, payment error, or other invalid payment (collectively “Invalidated Payment”);
  • (b) any error, negligence, misconduct or fraud by you, your employees, or someone acting on your behalf; and
  • (c) any losses resulting from your failure to comply with the terms of this Agreement, or your usage of the Braintree Payment Services.

In the event of an Invalidated Payment or other liability, in addition to our other rights and remedies (all of which are cumulative), we may (or instruct Acquirer to) deduct, setoff or recoup the amounts due to Braintree from your Payouts.

Without limiting Braintree’s other rights under the Agreement, when Merchant’s rate of Chargebacks exceed 90 basis point (0.9%) and 100 transactions in one month (“Excessive Chargebacks”), Merchant agrees to pay Braintree the Chargeback Maintenance Fee corresponding with Merchant’s Total Payment Volume as described in the table below every six months of consecutive Excessive Chargebacks. The parties acknowledge and agree that the Chargeback Maintenance Fee is commensurate to Braintree's additional financial risk exposure to continue providing Merchant the Payment Processing Services hereunder. The Chargeback Maintenance Fee shall only apply to you if you (a) meet the foregoing criteria and (b) applied for Braintree Payment Processing Services after November 15, 2019.

Total Payment Volume Chargeback Maintenance Fee
$0 - $5,000,000.00 $2,000.00
$5,000,000.01 - $ 50,000,000.00 $20,000.00
$50,000,000.01 and above $200,000.00

In addition to the above, if you have a past due amount owed to us or any of our affiliates under any other agreement, Braintree may instruct Acquirer to deduct the amounts owed from your Payouts. This includes amounts owed by your use of our various products and services which may include PayPal, Venmo and Hyperwallet.

Section 5 — Actions We May Take

5.01 Credit Report Authorization and Verification of Information

You authorize Braintree, directly or through third parties, to make any inquiries or take any actions we consider necessary to validate your identity, evaluate your creditworthiness, and verify information that you have provided to us. You authorize Braintree to obtain financial and credit information, such as pulling your personal credit report, or the credit report for your directors, officers, and principals. By completing your application to become a Braintree customer, you are providing Braintree with written instructions and authorization in accordance with the Fair Credit Reporting Act to obtain such financial information or credit reports.

In the event that we are unsuccessful in receiving satisfactory information for us to verify your identity or determine that you are creditworthy, Braintree reserves the right to terminate this Agreement with immediate notice to you, cease to provide access to the Braintree Payment Services, and refuse or rescind any payment by your customers.

5.02 Actions by Braintree

If we believe that your Transactions pose an unacceptable level of risk, that you have breached the terms of this Agreement, or that your account has been compromised, we may take various actions to avoid liability. The actions we may take include, but are not limited to, suspending or limiting your ability to use the Braintree Payment Services, refusing to process any Transaction, reversing a Transaction, instructing Acquirer to hold your Payouts, and contacting your customers to verify Transactions and reduce potential fraud and disputes. If possible, we will provide you with advance notice of our actions and resolution steps. However, advance notice will not be provided if there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.

5.03 Reserves

Braintree, in its sole discretion, may instruct Acquirer to place a Reserve on a portion of your Payouts in the event that we believe that there is a high level of risk associated with your business, your Bank-sponsored Merchant Account, your PayPal account or your Transactions. If we place a reserve on your Payouts, we will provide you with notice specifying the terms of the Reserve. The terms may require that a certain percentage of your Payouts are held for a certain period of time, that a fixed amount of your Payouts are withheld from payout to you, or such other restrictions that Braintree determines in its sole discretion. Braintree may change the terms of the Reserve at any time by providing you with notice of the new terms.

Braintree may hold a Reserve as long as it deems necessary, in its sole discretion, to mitigate any risks related to your Transactions. You agree that you will remain liable for all obligations related to your Transactions even after the release of any Reserve. In addition, we may require you to keep your Bank Account available for any open settlements, Chargebacks and other adjustments.

5.04 Security Interest

As security for the payment and performance of all of your now existing or hereinafter arising or incurred obligations under this Agreement or any other obligation to Braintree, you grant to Braintree a lien on, and security interest in and to, all your now existing or hereafter arising right, title and/or interest in, to or under this Agreement, the Reserve, all funds held in Reserve, all Reserves at any time established in accordance with this Agreement, and all proceeds of any of the foregoing. Merchant agrees to duly execute and deliver to Braintree such instruments and documents as may be required to perfect and otherwise give effect to the lien and security interest granted to Braintree under this Agreement.

5.05 Letter of Credit

In the event Braintree, in its sole discretion, believes there is a high level of risk associated with your business, your Bank-sponsored Merchant Account, your PayPal account or your Transactions, you shall duly cause to be delivered to Braintree a standby, unconditional, irrevocable letter of credit (the “Letter of Credit”) in the amount required by Braintree (the "Letter of Credit Amount"), with PayPal, Inc. as beneficiary, by an acceptable bank and in a form and content satisfactory to Braintree in its sole discretion and within five (5) business days of Braintree's request. If at any time after delivery of the Letter of Credit Braintree determines that the Letter of Credit Amount does not cover Braintree’s potential risk related to processing your transactions hereunder or any other contract entered into by you and Braintree, then you agree to cause the Letter of Credit to be amended or to secure an additional Letter of Credit, within five (5) business days from our written request, in an amount to cover such exposure.

Merchant shall cause the Letter of Credit to be continuously maintained in effect until Braintree consents otherwise and shall furnish Braintree with a new or extended Letter of Credit at least sixty (60) days prior to the expiration of a Letter of Credit and ensure there is no gap in coverage. It shall be a default under this Agreement if a new or extended Letter of Credit is not provided. Braintree shall be entitled to draw the full amount of the Letter of Credit in such event.

Braintree may at any time make one or more draws from the Letter of Credit (without notice to you) up to the amount owed to PayPal hereunder or under any other contract between Braintree, its affiliates and you. Braintree may, but shall not be required to, apply or offset such proceeds of the Letter of Credit to cure such amounts owed to Braintree by Merchant. All fees and/or costs, including without limitation attorneys' fees and costs, incurred related to the Letter of Credit shall be paid solely by Merchant. Merchant authorizes Braintree, at its election, to charge Merchant's account(s) with Braintree for all such fees and costs.

In addition to all of Braintree’s other rights and remedies under this Agreement or applicable law, Braintree shall have the right to immediately terminate this Agreement in the event Merchant fails (i) to furnish Braintree with a Letter of Credit within the timeframes stated in this Section; or (ii) to maintain the Letter of Credit as provided herein. In addition, the delivery of the Letter of Credit shall not act as a cure or waiver of any now existing or hereafter arising breaches or defaults under the Agreement.

Section 6 – Account Security, Data, Intellectual Property and Publicity

6.01 Security of your access

You agree to:

  • (a) Not allow anyone else to have or use your password details and to comply with all reasonable instructions we may issue regarding account access and security. In the event you share your password details, Braintree will not be liable to you for losses or damages caused by such sharing;
  • (b) Keep your personal details up to date. We may be unable to respond to you if you contact us from an address, telephone number or email account that is not registered with us; and
  • (c) Take all reasonable steps to protect the security of the personal electronic device through which you access the Braintree Payment Services (including, without limitation, using PIN and/or password protected personally configured device functionality to access the Braintree Payment Services and not sharing your device with other people).

6.02 Data Security Compliance

Merchant agrees to comply with applicable data privacy and security requirements under the Payment Card Industry Data Security Standard ("Network PCI DSS Requirements”) and any applicable Network data security requirements (including those made available by Visa, MasterCard, American Express and Discover) with regards to Merchant’s use, access, and storage of certain credit card non-public personal information. In order to verify your compliance with Network PCI DSS Requirements, you must complete and demonstrate certification pursuant to the requirements that we notify to you. Additionally, Merchant agrees to comply with its obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information. You must report any Customer Data breach or incident to Braintree and/or the Networks immediately after discovery of the incident. You also agree to ensure data quality and that any Customer Data is processed promptly, accurately and completely, and complies with the Networks’ technical specifications.

Braintree agrees to comply with the applicable Payment Card Industry Data Security Standard ("PCI DSS"). Braintree acknowledges that it is responsible for the security of cardholder data it possesses or otherwise stores, processes or transmits on behalf of the Merchant, or to the extent that Braintree could impact the security of the cardholder data environment.

6.03 Ownership of Data

All Customer Data shall be owned by Merchant and Merchant hereby grants Braintree a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display Customer Data for the following purposes: (i) providing and improving the Braintree Payment Services, including the collection, processing and useof Customer Data for the purposes of Braintree providing and improvingthe Fraud Maintenance Tools as part of the Braintree Payment Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymized and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer. Merchant undertakes to provide all notices and obtain all consents necessary for Braintree’s use of Customer Data set out above.

6.04 Data Protection

The data protection terms applicable to this Agreement are set out in Exhibit A (Data Protection Addendum) and Exhibit B (California Consumer Privacy Data Processing Addendum) and are hereby incorporated by reference into this Agreement.

6.05 Software License

Braintree grants you a revocable, non-exclusive, non-transferable, royalty-free limited license to access and/or use Braintree’s APIs, developer’s toolkit, and other software in accordance with the accompanying documentation made available by Braintree for purposes of using the Braintree Payment Services. This license grant includes all updates, upgrades, new versions and replacement software for your use in connection with the Braintree Payment Services. If you do not comply with the documentation and any other requirements provided by Braintree, then you will be liable for all resulting damages suffered by you, Braintree and third parties. Unless otherwise provided by applicable law, you agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. Upon expiration or termination of this Agreement, you will immediately cease all use of any Software.

6.06 Trademark License

Braintree grants you a revocable, non-exclusive, non-transferable license to use Braintree’s trademarks used to identify the Braintree Payment Service (the “Trademarks”) solely in conjunction with the use of the Braintree Payment Service. Merchant agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to Braintree (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising and use of all of the Trademarks, including the logos and trademarks of the Networks.

6.07 Intellectual Property

Other than the express licenses granted by this Agreement, Braintree grants no right or license by implication, estoppel or otherwise to the Braintree Payment Service or any Intellectual Property Rights of Braintree. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of Braintree, in the Braintree Payment Service) and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein.

6.08 Publicity

Merchant hereby grants Braintree permissions to use Merchant’s name and logo in its marketing materials including, but not limited to use on Braintree’s website, in customer listings, in interviews and in press releases.

6.09 Confidential Information

The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Braintree Payment Services and the know how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.

Section 7 - Indemnification, Limitation of Liability, Disclaimer of Warranties

7.01 Indemnification

Merchant agrees to indemnify, defend, and hold harmless Braintree, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of (i) your breach of this Agreement or any other agreement you enter into with Braintree or its suppliers in relation to your use of the Braintree Payment Services; (ii) your use of the Braintree Payment Services; (iii) your acts or omissions; and/or (iv) your violation of any applicable law, regulation, or Network Rules and requirements.

7.02 LIMITATION OF LIABILITY

BRAINTREE SHALL NOT BE LIABLE TO YOU OR A THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BRAINTREE PAYMENT SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF BRAINTREE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL BRAINTREE’S TOTAL AGGREGATE LIABILITY TO MERCHANT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE DIRECT DAMAGES SUFFERED BY SUCH PARTY IN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY MERCHANT TO BRAINTREE UNDER THIS AGREEMENT DURING THE FIRST TWELVE (12) MONTH PERIOD AFTER THE EFFECTIVE DATE OF THIS AGREEMENT.

7.03 Disclaimer of Warranties

THE BRAINTREE PAYMENT SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. BRAINTREE DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BRAINTREE OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF BRAINTREE’S OBLIGATIONS.

The parties acknowledge that the Braintree Payment Service is a computer network based service which may be subject to outages and delay occurrences. As such, Braintree does not guarantee continuous or uninterrupted access to the Braintree Payment Services. Merchant further acknowledges that access to the Braintree website or to the Braintree Payment Services may be restricted for maintenance. Braintree will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, Braintree will not be liable for any interruption, outage, or failure to provide the Braintree Payment Services.

7.04 ATTORNEY’S FEES; INSOLVENCY AND OTHER PROCEEDINGS

If it becomes necessary for Braintree to use legal counsel to enforce or prevent a breach of this Agreement or your obligations, whether or not suit is filed, you will immediately reimburse us for reasonably incurred attorney fees and other costs and expenses. You will also immediately reimburse us for all reasonable attorney's fees and costs incurred in connection with the representation of Braintree in any bankruptcy, insolvency, reorganization, or other debtor-relief or similar proceeding of or relating to (a) Merchant, (b) any person liable (by way of guaranty, assumption, endorsement, or otherwise) on any of the obligations under this Agreement, (c) this Agreement, or (d) any property that secures any of your obligations under this Agreement.

Section 8 - Term and Termination; Dormancy

8.01 Term and Termination

The term of this Agreement shall commence on the Effective Date and shall continue on until terminated as set forth herein. You may terminate this Agreement, without cause, by providing Braintree with notice of your intent to terminate, or by ceasing to use the Braintree Payment Services.

Braintree may terminate this Agreement or suspend services to you if any of the following occurs: (1) we are required by the Networks, the Acquirer, or an order from a regulatory body to cease providing services to you; (2) we believe that you have breached this Agreement, or are likely to do so; (3) if we determine that your use of the Braintree Payment Services carries an unacceptable amount of risk, including credit or fraud risk; or (4) any other legal, reputational, or risk-based reason exists, in Braintree’s sole discretion. In the event that Braintree must terminate this Agreement, Braintree shall provide you with written notice as soon as reasonably practicable.

After termination by either party as described above, Merchant shall no longer have access to, and shall cease all use of the Braintree Payment Services. Any termination of this Agreement does not relieve Merchant of any obligations to pay any fees, costs, penalties, Chargebacks or any other amounts owed by you to us as provided under this Agreement, whether accrued prior to or after termination.

8.02 Dormancy

If there is no processing activity through your Bank-sponsored Merchant Account(s) for a period of twelve (12) months or longer, PayPal may close such inactive Bank-sponsored Merchant Account(s) and terminate the Gateway Services upon written notice. If required by applicable law, PayPal will escheat (send) any outstanding funds to your state of residency. If you would like to claim any escheated funds from the applicable state, please contact the applicable state’s unclaimed property administrator. You will remain liable for all outstanding obligations under this Agreement related to your Bank-sponsored Merchant Account(s) prior to closure.

Section 9 – General Provisions

9.01 Independent Contractors

Except as provided in Section 2.02 of this Agreement, the relationship of Braintree and Merchant is that of independent contractors. Neither Merchant nor any of its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of Braintree, nor do they have any authority to bind Braintree by contract or otherwise to any obligation. None of such parties will represent anything to the contrary, either expressly, implicitly, by appearance or otherwise

9.02 Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.

9.03 Waiver

No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.

9.04 Assignment

This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Merchant may not assign this Agreement without the written consent of Braintree. Braintree may assign this Agreement in its sole discretion without the written consent of Merchant.

9.05 Amendment

We may amend this Agreement at any time by posting a revised version of it on our website under the “Legal” section of our website. The revised version will be effective at the time we post it. In addition, if our changes reduce your rights or increase your responsibilities, we will provide you with at least 30 days’ prior notice by posting notice under the “Policy Updates” section contained in the “Legal” section of our website. If you do not agree to the updated terms, you can terminate your Agreement by providing us with notice in the manner indicated below in Section 9.09. If you provide us with termination notice within 30 days of the date of update, then your current terms and conditions shall apply during this notice period.

9.06 Entire Agreement

This Agreement sets forth the entire agreement and understanding of the parties hereto in respect to the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.

9.07 Survival

Sections 2 (Fees and Tax), 4 (Liability for Chargebacks, Invalidated Payments and other Liabilities), 5 (Actions We May Take), 6.09 (Confidential Information), 7 (Indemnification, Limitation of Liability, Disclaimer of Warranties), 8 (Term and Termination, Data Portability), 9 (General Provisions), Exhibit “A” (Data Protection Addendum) and Exhibit “B” (Definitions), as well as any other terms which by their nature should survive, will survive the termination of this Agreement.

9.08 Communication; Recording Calls; and Availability of Contractual Documents

You consent to receive autodialed or prerecorded calls and text messages from Braintree at any telephone number that you have provided us or that we have otherwise obtained to (i) notify you regarding your account; (ii) collect a debt; (iii) resolve a dispute; (iv) contact you about exclusive offers; or (v) as otherwise necessary to service your account or enforce the Agreement. Standard telephone minute and text charges may apply.

We may share your telephone numbers with our service providers (such as billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under the Agreement, our policies, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.

Braintree may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Braintree or its agents for quality control and training purposes or for its own protection.

If you have a question or complaint relating to the Braintree Payment Services or your Transactions, please contact the Braintree customer support as defined in the “Contact” tab of the Braintree website. The general terms and conditions for the Braintree Payment Services will be available at all times on www.braintreepayments.com in the “Legal” tab, and/or be made available during signup process as an electronic copy per e-mail. You may request at any time free of charge electronic copy of your contractual documents.

9.09 Notices, Contracting Entity, Governing Law, and Jurisdiction

a. Contracting Entity. “PayPal,” “Braintree,” “we,” and “our” in this Agreement refer to PayPal, Inc., a Delaware corporation in the United States whose address is 2211 North First Street, San Jose, CA 95131.

b. Notice to Merchant. Merchant agrees that Braintree may provide notices and disclosures to Merchant by posting them on Braintree’s website, emailing them to Merchant, or sending them to Merchant through postal mail. Notices sent to Merchant by postal mail are considered received by Merchant within three (3) Business Days of the date Braintree sends the notice unless it is returned to Braintree. Disclosures and notices posted on Braintree’s website or emailed shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered. Furthermore, you understand and agree that if Braintree sends you an email but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic communications, Braintree will be deemed to have provided the communication to you. In addition, Braintree may send Merchant emails, including, but not limited to, those relating to product updates, new features and offers and Merchant hereby consents to such email notification. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy.

c. Notices to Braintree. Notice to Braintree shall be considered valid only if sent by postal mail to PayPal, Inc., Attention: Legal Department, 2211 North First Street, San Jose, California 95131.

d. Choice of law and jurisdiction. The laws of the State of Delaware, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between the parties, except as otherwise stated in this Agreement.

9.10 Agreement to Arbitrate

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW CLAIMS YOU AND BRAINTREE HAVE AGAINST EACH OTHER ARE RESOLVED.

You and Braintree agree that any and all disputes or claims that have arisen or may arise between you and Braintree shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this provision.

THE PARTIES ALSO AGREE THAT YOU AND BRAINTREE MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BRAINTREE AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER BRAINTREE MERCHANTS.

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. All issues are for the arbitrator to decide, except that issues relating to arbitrability, or the scope or enforceability of this Agreement to Arbitrate, shall be for a court of competent jurisdiction to decide. If a court decides that any part of this Section 9.10 is invalid or unenforceable, the other parts of this Section 9.10 shall still apply.

The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Braintree may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Braintree subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Braintree may attend by telephone, unless required otherwise by the arbitrator(s).

The arbitrator(s) will decide the substance of all claims in accordance with the laws of the State of Delaware, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different merchants, but is/are bound by rulings in prior arbitrations involving the same merchant to the extent required by applicable law. The arbitration award shall be final and binding and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

EXHIBIT A – Data Protection Addendum

This Data Protection Addendum (“Addendum”) is entered into between Merchant and PayPal, Inc., a Delaware corporation whose address is 2211 North First Street, San Jose, CA 95131 ("Braintree" or “PayPal”) (collectively the “Parties”). This Addendum shall form part of the Payment Services Agreement between Merchant and Braintree (the “Agreement”) in accordance with the “Effect of this Addendum” section below.

Capitalized terms used but not defined in this Addendum shall have the meaning set out in the Agreement.

EFFECT OF THIS ADDENDUM

This Addendum amends and forms part of the Agreement, and is effective as of the Effective Date of the Agreement.

1 DEFINITIONS AND INTERPRETATION

1.1 The following terms have the following meanings when used in this Addendum:

  • Card Information” is defined in Section 3.14 of this Addendum.
  • Customer" means an EU customer of Merchant and for the purposes of this Addendum, is a data subject.
  • Customer Data" means the personal data that (i) the Customer provides to Merchant and Merchant passes on to Braintree through the use by Merchant of the Braintree Payment Services and (ii) Braintree collects from the Customer’s device and browser through use by the Merchant of the Braintree Payment Services.
  • data controller" (or simply "controller") and "data processor" (or simply "processor") and "data subject" have the meanings given to those terms under the Data Protection Laws.
  • Data Protection Laws" means EU Directive 95/46/EC or Regulation (EU) 2016/679 (GDPR) and any associated regulations or instruments and any other data protection laws, regulations, regulatory requirements and codes of conduct of EU Member States applicable to Braintree's provision of the Services.
  • Data Recipient” is defined in Section 3.14 of this Addendum.
  • Merchant Data" means any personal data relating to business contact details of Merchant or its employees, officers or contractors provided to or obtained by Braintree in the provision of the Services.
  • PayPal Group" means PayPal and all companies in which PayPal or its successor directly or indirectly from time to time owns or controls.
  • personal data" has the meaning given to it in the Data Protection Laws.
  • processing" has the meaning given to it in the Data Protection Laws and "process", "processes" and "processed" will be interpreted accordingly. 
  • Security Incident" means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data on systems managed by or otherwise controlled by Braintree.
  • Services" means the "Braintree Payment Services" as defined in the Agreement.
  • Sub-processor" means any processor engaged by PayPal and/or its affiliates in the processing of personal data.

1.2 Addendum. This Addendum comprises (i) sections 1 to 4, being the main body of the Addendum; (ii) Attachment 1; (iii) Attachment 2; and (iv) Attachment 3.

2 PROCESSING OF PERSONAL DATA IN CONNECTION WITH THE SERVICES

2.1 Braintree is the controller in respect of Merchant Data and may use it for the following purposes as provided for in the Braintree Privacy Policy:

2.1.1 as reasonably necessary to provide the Services to Merchant;

2.1.2 to conduct anti-money laundering, know your customer and fraud checks on the Merchant;

2.1.3 to market to the employees and contractors of Merchant; and

2.1.4 any other purpose that it notifies (or Merchant agrees to notify on its behalf) to the employees and contractors of Merchant in accordance with Data Protection Laws.

2.2 Braintree shall comply with the requirements of the Data Protection Laws applicable to controllers in respect of the use of Merchant Data under this Agreement (including without limitation, by implementing and maintaining at all times all appropriate security measures in relation to the processing of Merchant Data and by maintaining a record of all processing activities carried out in respect of Merchant Data) and shall not knowingly do anything or permit anything to be done with respect to the Merchant Data which might lead to a breach by the Merchant of the Data Protection Laws.

2.3 With regard to any Customer Data to be processed by Braintree in connection with this Agreement, Merchant will be a controller and Braintree will be a processor in respect of such processing. Merchant will be solely responsible for determining the purposes for which and the manner in which Customer Data are, or are to be, processed.

2.4. Braintree shall only process Customer Data on behalf of and in accordance with Merchant’s written instructions. The Parties agree that this Addendum is Merchant's complete and final written instruction to Braintree in relation to Customer Data. Additional instructions outside the scope of this Addendum (if any) require prior written agreement between Braintree and Merchant, including agreement of any additional fees payable by Merchant to Braintree for carrying out such additional instructions. Merchant shall ensure that its instructions comply with all applicable laws, including Data Protection Laws, and that the processing of Customer Data in accordance with Merchant's instructions will not cause Braintree to be in breach of Data Protection Laws. Merchant hereby instructs Braintree to process Customer Data for the following purposes:

2.4.1 as reasonably necessary to provide the Services to Merchant;

2.4.2 after anonymizing the Customer Data, to use that anonymized Customer Data, directly or indirectly, which is no longer identifiable personal data, for any purpose whatsoever.

2.5 In relation to Customer Data processed by Braintree under this Agreement, Braintree shall co-operate with Merchant to the extent reasonably necessary to enable Merchant to adequately discharge its responsibility as a controller under Data Protection Laws, including without limitation that Braintree shall cooperate and provide Merchant with such reasonable assistance as Merchant requires in relation to:

2.5.1. assisting Merchant in the preparation of data protection impact assessments to the extent required of Merchant under Data Protection Laws; and

2.5.2 responding to binding requests for the disclosure of information as required by local laws, provided always that where the request is from a non-EEA law enforcement agency Braintree will (a) inform Merchant of the request, the data concerned, response time, the identity of the requesting body and the legal basis for the request; (b) wait for Merchant’s instructions provided the instruction and the opinion are received within a reasonable period of time, which shall be assessed in light of the time period afforded by the law enforcement agency to Braintree; (c) where Braintree is prohibited from informing Merchant about the law enforcement agency’s request, take reasonable steps to have this prohibition waived and to make available relevant information about the request as soon as possible to Merchant (these efforts will be documented); and (d) where the prohibition cannot be waived, compile a list, in compliance with its national law and on an annual basis, of the number of such requests received, the type of Customer Data requested and the identity of the law enforcement agency concerned and make it available to the Customer’s data protection authority annually on request (in which circumstances Braintree will be acting as a controller).

2.6 Scope and Details of Customer Data processed by Braintree. The objective of processing Customer Data by Braintree is the performance of the Services pursuant to the Agreement. Braintree shall process the Customer Data in accordance with the specified duration, purpose, type and categories of data subjects as set out in Attachment 3 (Data Processing of Customer Data).

2.7 The Parties will at all times comply with Data Protection Laws.

2.8 Merchant undertakes to provide all notices and obtain all consents necessary for Braintree’s use of Merchant Data and Customer Data set out above.

3 DATA PROCESSOR TERMS

This section 3 applies only to the extent that Braintree acts as a processor or Sub-processor to Merchant. It does not apply where Braintree acts as a controller.

3.1 Correction, Blocking and Deletion. To the extent Merchant, in its use of the Services, does not have the ability to correct, amend, block or delete Customer Data, as required by Data Protection Laws, Braintree shall comply with any commercially reasonable request by Merchant to facilitate such actions to the extent Braintree is legally permitted to do so. To the extent legally permitted, Merchant shall be responsible for any costs arising from Braintree’s provision of such assistance.

3.2 Data Subject Requests. Braintree shall, to the extent legally permitted, promptly notify Merchant if it receives a request from a Customer for access to, correction, amendment or deletion of that Customer’s personal data. Braintree shall not respond to any such Customer request without Merchant’s prior written consent except to confirm that the request relates to Merchant to which Merchant hereby agrees. Braintree shall provide Merchant with commercially reasonable cooperation and assistance in relation to handling of a Customer's request for access to that person’s personal data, to the extent legally permitted and to the extent Merchant does not have access to such Customer Data through its use of the Services. If legally permitted, Merchant shall be responsible for any costs arising from Braintree’s provision of such assistance.

3.3 Confidentiality. Braintree shall ensure that its personnel engaged in the processing of Customer Data are informed of the confidential nature of the Customer Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Braintree shall ensure that such confidentiality obligations survive the termination of the personnel engagement.

3.4 Training. Braintree undertakes to provide training as necessary from time to time to the Braintree personnel with respect to Braintree's obligations in this Addendum to ensure that the Braintree personnel are aware of and comply with such obligations.

3.5 Limitation of Access. Braintree shall ensure that access by Braintree's personnel to Customer Data is limited to those personnel performing Services in accordance with the Agreement. 3.6 Data Protection Officer. Members of the PayPal Group have appointed a data protection officer where such appointment is required by Data Protection Laws. The appointed person may be reached at PayPal (Europe) S.à.r.l. et Cie, S.C.A., 22-24 Boulevard Royal L-2449, Luxembourg.

3.7 Sub-processors.  Merchant specifically authorizes the engagement of members of the PayPal Group as Sub-processors in connection with the provision of the Services. In addition, Merchant generally authorizes the engagement of any other third parties as Sub-processors in connection with the provision of the Services. When engaging any Sub-processor, Braintree will execute a written contract with the Sub-processor which contains terms for the protection of Customer Data which are no less protective than the terms set out in this Addendum.

3.7.1 List of Current Sub-processors and Notification of New Sub-processors. Braintree shall make available to Merchant a current list of Sub-processors for the respective Services with the identities of those Sub-processors (“Sub-processor List”). The Sub-processor List is included in Attachment 1 to this Addendum. Where a Sub-processor is proposed to be changed Braintree shall provide prior notice by email to Merchant before implementing such change.

3.7.2 Objection Right for new Sub-processors. If Merchant has a reasonable basis to object to Braintree’s use of a new Sub-processor, Merchant shall notify Braintree promptly in writing within two (2) months after receipt of Braintree’s notice. In the event Merchant objects to a new Sub-processor(s) and that objection is not unreasonable Braintree will use reasonable efforts to make available to Merchant a change in the affected Services or recommend a commercially reasonable change to Merchant’s configuration or use of the affected Services to avoid processing of personal data by the objected-to new Sub-processor without unreasonably burdening Merchant. If Braintree is unable to make available such change within a reasonable period of time, which shall not exceed sixty (60) days, Merchant may terminate the Agreement in respect only of those Services which cannot be provided by Braintree without the use of the objected-to new Sub-processor, by providing no less than sixty (60) days' written notice to Braintree. Merchant shall receive a refund of any prepaid fees for the period following the effective date of termination in respect of such terminated Services.

3.8 Audits and Certifications. Where requested by Merchant, subject to the confidentiality obligations set forth in the Agreement, Braintree shall make available to Merchant (or Merchant’s independent, third-party auditor that is not a competitor of Braintree or any members of PayPal or the PayPal Group) information regarding Braintree’s compliance with the obligations set forth in this Addendum in the form of the third-party certifications and audits (if any) set forth in the Privacy Policy set out on our website. Merchant may contact Braintree in accordance with the “Notices” Section of the Agreement to request an on-site audit of the procedures relevant to the protection of personal data. Merchant shall reimburse Braintree for any time expended for any such on-site audit at Braintree’s then-current professional services rates, which shall be made available to Merchant upon request. Before the commencement of any such on-site audit, Merchant and Braintree shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Merchant shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Braintree. Merchant shall promptly notify Braintree with information regarding any non-compliance discovered during the course of an audit.

3.9 Security. Braintree shall, as a minimum, implement and maintain appropriate technical and organizational measures as described in Attachment 2 to this Addendum to keep Customer Data secure and protect it against unauthorized or unlawful processing and accidental loss, destruction or damage in relation to the provision of the Services. Since Braintree provides the Services to all Merchants uniformly via a hosted, web-based application, all appropriate and then-current technical and organizational measures apply to Braintree’s entire customer base hosted out of the same data center and subscribed to the same service. Merchant understands and agrees that the technical and organizational measures are subject to technical progress and development. In that regard, Braintree is expressly permitted to implement adequate alternative measures as long as the security level of the measures is maintained in relation to the provision of the Services. In the event of any detrimental change Braintree shall provide a notification together with any necessary documentation to Merchant by email or publication on a website easily accessible by Merchant.

3.10 Security Incident Notification. If Braintree becomes aware of a Security Incident in connection with the processing of Customer Data, Braintree will: (a) notify Merchant of the Security Incident promptly and without undue delay; and (b) promptly take reasonable steps to minimize harm and secure Customer Data.

3.11 Details of Security Incident. Notifications made under section 3.10 (Security Incident Notification) will describe, to the extent possible, reasonable details of the Security Incident, including steps taken to mitigate the potential risks.

3.12 Communication. Braintree will deliver its notification of any Security Incident to one or more of Merchant's administrators by any means Braintree selects, including via email. Merchant is solely responsible for maintaining accurate contact information and ensuring that any contact information is current and valid.

3.13 Deletion. Upon termination or expiry of the Agreement, Braintree will delete or return to Merchant all Customer Data processed on behalf of the Merchant, and Braintree shall delete existing copies of such Customer Data except where necessary to retain such Customer Data strictly for the purposes of compliance with applicable law.

3.14 Data Portability. Upon any termination or expiry of this Agreement, Braintree agrees, upon written request from Merchant, to provide Merchant’s new acquiring bank or payment service provider (“Data Recipient”) with any available credit card information including personal data relating to Merchant’s Customers (“Card Information”). In order to do so, Merchant must provide Braintree with all requested information including proof that the Data Recipient is in compliance with the Network PCI-DSS Requirements and is level 1 PCI compliant. Braintree agrees to transfer the Card Information to the Data Recipient so long as the following applies: (a) Merchant provides Braintree with proof that the Data Recipient is in compliance with the Network PCI-DSS Requirements (Level 1 PCI compliant) by providing Braintree a certificate or report on compliance with the Network PCI-DSS Requirements from a qualified provider and any other information reasonably requested by Braintree; (b) the transfer of such Card Information is compliant with the latest version of the Network PCI-DSS Requirements; and (c) the transfer of such Card Information is allowed under the applicable Network Rules, and any applicable laws, rules or regulations (including Data Protection Laws).

This Addendum shall take effect between, and become legally binding on the Parties on the date determined by “Effect of this Addendum” section above.

Attachment 1

Sub-processor List

  1. Kount Inc: 917 South Lusk, 3rd Floor, Boise, ID 83706

  2. Amazon Web Services, Inc.: 410 Terry Avenue, North Seattle, WA 98109-5210

  3. CardinalCommerce Corporation: 8100 Tyler Blvd., Mentor, OH 44060

Attachment 2

The following technical and organizational measures will be implemented:

  1. Measures taken to prevent any unauthorized person from accessing the facilities used for data processing (e.g. secured access, badges);
  2. Measures taken to prevent data media from being read, copied, amended or moved by any unauthorized persons (e.g. data kept in locked premises);
  3. Measures taken to prevent the unauthorized introduction of any data into the information system, as well as any unauthorized knowledge, amendment or deletion of the recorded data (e.g. restricted access to the IT infrastructure);
  4. Measures taken to prevent data processing systems from being used by unauthorized person using data transmission facilities (e.g. firewalls);
  5. Measures taken to guarantee that authorized persons when using an automated data processing system may access only data that are within their competence (e.g. specific users accounts);
  6. Measures taken to guarantee the checking and recording of the identity of third parties to whom the data can be transmitted by transmission facilities (e.g. VPN, encryption of data);
  7. Measures taken to guarantee that the identity of the persons having had access to the information system and the data introduced into the system can be checked and recorded ex post facto at any time and by any authorized person;
  8. Measures taken to prevent data from being read, copied, amended or deleted in an unauthorized manner when data are disclosed and data media transported;
  9. Measures taken to safeguard data by creating backup copies (encryption of data back-ups).

Attachment 3

Data Processing of Customer Data

Categories of data subjects

Customer Data – The personal data that the Customer provides to Merchant and Merchant passes on to Braintree through the use by the Customer of the Braintree Payment Services.

Subject-matter of the processing

The payment processing services offered by Braintree which provides Merchant with the ability to accept credit cards, debit cards, and other payment methods on a website or mobile application from Customers.

The payment processing services include the optional use of Fraud Maintenance Tools by Merchant to detect fraudulent transactions.

Nature and purpose of the processing

Braintree processes Customer Data that is sent by the Merchant to Braintree for purposes of obtaining verification or authorization of the Customer’s payment method as payment to the Merchant for the sale goods or services.

Braintree processes Customer Data that is collected by Braintree or sent from Merchant to Braintree for the purposes of Braintree making the Fraud Maintenance Tools available to Merchant. Braintree collects, processes and uses Customer Data on behalf of Merchant in order to analyze the Customer Data and use it to identify fraudulent transactions on Merchants’ websites or mobile applicationsas further described in the Payment Services Agreement.

Type of personal data

Customer Data – Merchant shall inform Braintree of the type of Customer Data Braintree is required to process under this Agreement. Should there be any changes to the type of Customer Data Braintree is required to process then Merchant shall notify Braintree immediately. Braintree processes the following Customer Data, as may be provided by the Merchant to Braintree from time to time:

Full name……………………………………………

Date of birth……………………………………………

Home address……………………………………………

Shipping address……………………………………………

Work address……………………………………………

Billing address……………………………………………

Email address……………………………………………

Telephone number……………………………………………

Fax number……………………………………………

Government ID number……………………………………………

Bank account number and bank routing number……………………………………………

Financial account number……………………………………………

Card or payment instrument type……………………………………………

Card Primary Account Number (PAN) or Device-specific Primary Account Number (DPAN)

……………………………………………

Card Verification Value (CVV)……………………………………………

Card expiration date……………………………………………

Business tax ID……………………………………………

Username……………………………………………

Password……………………………………………

IP address……………………………………………

Device data*……………………………………………

Browser data*……………………………………………

*As further detailed in the Fraud Maintenance Tools documentation made available by Braintree from time to time.

Special categories of data (if relevant)

The transfer and processing of special categories of data is not anticipated.

Duration of Processing

The term of the Agreement.

EXHIBIT B – California Consumer Privacy Data Processing Addendum

This California Consumer Privacy Data Processing Addendum (“CCPA Addendum”) is entered into between Merchant and PayPal, Inc., a Delaware corporation whose address is 2211 North First Street, San Jose, CA 95131 ("Braintree" or “PayPal”) (collectively the “Parties”). This Addendum shall form part of the Payment Services Agreement between Merchant and Braintree (the “Agreement”) in accordance with the “Effect of this CCPA Addendum” section below.

Capitalized terms used but not defined in this Addendum shall have the meaning set out in the Agreement.

EFFECT OF THIS CCPA ADDENDUM

This CCPA Addendum amends and forms part of the Agreement, and is effective as of the Effective Date of the Agreement.

I. Definitions. The following additional definitions shall apply to this CCPA Addendum:

  • A. "Applicable Data Protection Laws" means California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et seq. ("CCPA").
  • B. “Personal Information” means all data or information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person or household.
  • C. "Process" or "Processed" or "Processing" means any operation or set of operations performed upon Personal Information, including collection, recording, retention, sharing, organization, storage, access, adaptation, alteration, retrieval, consultation, use, disclosure, dissemination, making available, alignment, combination, blocking, deleting, erasure, or destruction.

II. Processing of Personal Information

  • A. The Parties acknowledge and agree that Service Provider will Process Personal Information of Merchant’s customers and other natural persons, households, and entities only for the purposes specified in the Agreement between the parties.
  • B. The Parties acknowledge and agree that valuable consideration, monetary or otherwise, is being provided for the services being rendered and not for providing Personal information.
  • C. Service Provider is prohibited from collecting, retaining, using, selling or disclosing Personal Information except as necessary for the specific purpose of performing the services specified in the Agreement between the parties.
  • D. Service Provider shall, to the extent legally permitted, provide reasonable assistance to Merchant to respond to requests from customers and other natural persons, households, or entities to exercise their rights under Applicable Data Protection Laws (e.g., rights to access or delete Personal Information) in a manner that is consistent with the nature and functionality of the services. Merchant is responsible for handling such requests in accordance with Applicable Data Protection Laws.

III. Certification and Interpretation

  • A. To the extent required by Applicable Data Protection Laws, Service Provider hereby certifies that it understands and agrees to the terms and restrictions of this CCPA Addendum. To the extent not inconsistent herewith, the applicable provisions of the Agreement(s) including without limitation, security requirements, indemnifications, limitations of liability, enforcement, and interpretation shall apply to this CCPA Addendum. In the event of any conflict between this CCPA Addendum and the terms of an applicable Agreement, the terms of this CCPA Addendum shall control solely with respect to data processing terms where required by Applicable Data Protection Laws, and, in all other respects, the terms of the applicable Agreement shall control. Notwithstanding any term or condition of the CCPA Addendum, the CCPA Addendum does not apply to the Processing of any Personal Information that Service Provider or its affiliates has the rights to process other than on behalf of Merchant.

EXHIBIT C – Definitions

  • Acquirer” means the financial institution that provides acquiring services to Merchant under the terms of the Bank Agreement.
  • Agreement” means this Braintree Payment Services Agreement, including all exhibits and other agreements and documents incorporated herein.
  • Bank Account” means the bank account that you specify to receive your Payouts.
  • Bank Agreement” means the agreement provided by the financial institution that is providing the acquiring services.
  • Bank-sponsored Merchant Account” means the merchant account(s) provisioned to Merchant by Acquirer for use as part of the Braintree Payment Services under the terms of the Bank Agreement.
  • Business Day” means a day where banks are generally open in the United States.
  • Chargeback” means a challenge to a payment that a buyer files directly with his or her credit or debit card issuer.
  • Chargeback Maintenance Fee” is defined in Section 4 above.
  • Confidential Information" is defined in Section 6.09 above.
  • Control Panel” is the user interface for the Braintree Payment Services.
  • Customer(s)” means the customer of the Merchant.
  • Customer Data” means all information, including personal data, that (i) the Customer provides to Merchant and Merchant passes on to Braintree through the use by Merchant of the Braintree Payment Services and (ii) Braintree collects from the Customer’s device and browser through use by Merchant of the Braintree Payment Services.
  • Debit Authorization” is defined in Section 2.02 above.
  • Excessive Chargebacks” is defined in Section 4 above.
  • Fraud Maintenance Tools” is defined in Section 1.01 (c) above.
  • Hyperwallet” means HSI USA Inc. and its affiliates.
  • Hyperwallet Customer Funds Account” means a pooled Hyperwallet funds account designated for the benefit of merchants and segregated from Hyperwallet’s proprietary operating accounts where your funds are held in trust and in accordance with the Hyperwallet terms of service.
  • Intellectual Property Rights” means the rights owned by a party in its Intellectual Property.
  • Invalidated Payment” is defined in Section 4(a) above.
  • Letter of Credit” is defined in Section 5.05 above.
  • Letter of Credit Amount” is defined in Section 5.05 above.
  • Merchant” or “you” means the entity and/or individual who enters into this Agreement.
  • Networks” means, collectively, Visa, MasterCard, Discover, American Express, any ATM or debit network, and the other card network organizations.
  • Network PCI-DSS Requirements” has the definition ascribed to such term in Section 6.02.
  • Network Rules” is defined in Section 3.01(c) above.
  • Payout” means the amount due to you from your Transactions minus our fees and any Refunds, Chargebacks, Reversals, setoffs, recoupments or other amounts due to Braintree.
  • Reversal” means any payment that Braintree reverses to your customer.
  • Refund” means a refund issued by you through the Braintree Control Panel or through your API access.
  • Reserve” means an amount or percentage of your Payouts that we instruct Acquirer to hold in order to protect against the risk of Reversals, Chargebacks, or any other risk, exposure and/or potential liability to us related to your use of the Braintree Payment Services.
  • Restricted Activities” means any breaches of our Acceptable Use Policy and any activity specified in Section 3.01 above.
  • Software” is defined in Section 6.05 above.
  • Total Payment Volume” shall be based on Merchants total Transactions processed, calculated in USD, within the twelve (12) months preceding the month the Chargeback Maintenance Fee becomes due.
  • Trademark(s)" is defined in Section 6.06 above.
  • Transaction” means the payment of funds between you and a Customer related to the sale of goods and/or services, or charitable donations.




Current Payment Services Agreement

Effective Date: The Payment Services Agreement is effective September 23, 2019 for Merchants who signed up before August 19, 2019 or immediately for all new Merchants who signed up on or after August 19, 2019.

This Braintree Payment Services Agreement, and the agreements, policies, and documents incorporated herein, (this “Agreement”), is entered into by and between PayPal, Inc., a Delaware corporation whose address is 2211 North First Street, San Jose, CA 95131 (“Braintree,” “PayPal,” “we,” or “our”) and the entity or individual who enters into this Agreement (“Merchant” or “you”). This Agreement sets out the terms and conditions under which you may utilize the Braintree Payment Services.

This Agreement becomes a legally binding contract and is effective as of the earliest date you do any of the following (the “Effective Date”):

Create an account on the Braintree website; Accept this Agreement online; or Begin using the Braintree Payment Services. This Agreement, as it may be amended from time to time, will be available on the “Legal” tab on the Braintree website. In addition to the terms of this Agreement, you agree to be bound by the terms of our Privacy Policy and Acceptable Use Policy, as well as your applicable Bank Agreement(s), which are incorporated herein by this reference.

Please be advised that this Agreement contains provisions, including an Agreement to Arbitrate, that govern how claims you and Braintree have against each other are resolved, which will, with limited exception, require the parties to submit claims they may have against one another to binding and final arbitration. Under the Agreement to Arbitrate, the parties will (1) only be permitted to pursue claims against each other on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

Section 1 — Braintree Payment Services

1.01 “Braintree Payment Service(s)” means:

  • (a) “Payment Processing Services” means the payment processing services offered by Braintree which provide merchants with the ability to accept credit cards, debit cards, and other payment methods on a website or mobile application. These services include Gateway Services, a Bank-sponsored Merchant Account, Fraud Maintenance Tools (each as defined in this Agreement), recurring billing functionality, payment card storage, foreign currency acceptance, white glove customer support, and other software, APIs and services and technology as described on the Braintree website.
  • (b) “Gateway Services” means the gateway services offered by Braintree which provide Merchants with the software and connectivity required to allow real-time secure data transmission for processing of credit card, debit card and certain other available payment method payments on a website or mobile application. The Gateway Services include those additional products and services provided by Braintree, including but not limited to the Forwarding Services, Grant Services and ACH Services (“PayPal Products and Services”), which are provided subject to the additional PayPal Products and Services as set forth on the Braintree website which are incorporated into this Agreement by reference. In addition, the Gateway Services include certain payment technology services provided by third parties that are used to facilitate your processing of credit and debit card payments (“Payment Technology Services”). In order to use these services, you agree to the applicable Payment Technology Services terms as set forth on the Braintree website which are incorporated into this Agreement by reference. You acknowledge and agree that the Payment Technology Services are provided solely by the relevant third party (and not PayPal) as set forth in the applicable Payment Technology Services terms, and that PayPal will under no circumstances be responsible or liable for any damages, losses or costs whatsoever suffered or incurred by you resulting from any Payment Technology Services.
  • (c) “Fraud Maintenance Tools” means the optional fraudulent transaction management tools made available as part of the Braintree Payment Services that, if enabled by you, allow you to access fraudulent transaction management features to help detect fraudulent transactions based on the settings you may adopt, as described in more detail on the Braintree website (“Fraud Maintenance Tools”). If you elect to enable and use the Fraud Maintenance Tools, you are responsible for determining which tools to use and for setting your own filter rules, which instruct us which Transactions to accept and decline on your behalf. If you set these filter rules too restrictively, you might lose sales volume. It is your responsibility to monitor your filter rules and settings on an ongoing basis. We may suggest filters and settings that may be appropriate for your business, based on factors such as your business profile and transaction history, however it is your responsibility to evaluate the usefulness and risk of any information, product or service. It is your sole responsibility to provide any necessary notices and disclosures, and obtain any required consents, on the use of the Fraud Maintenance Tools to your Customers on your website or mobile application. You shall use the Fraud Maintenance Tools in accordance with the applicable guides and other documentation made available by us, and you shall not use or permit others to use information obtained through the use of the Fraud Maintenance Tools for any purpose other than in conjunction with the Payment Processing Services and in a manner described in the applicable documentation for the Fraud Maintenance Tools. You acknowledge and agree that, subject to Section 7.03, Braintree does not represent or warrant that the Fraud Maintenance Tools are error free or that they will identify all fraudulent transaction activity. In addition, Braintree shall not be liable whether a Transaction is accepted or rejected using the Fraud Maintenance Tools. You are responsible for your optional use of the Fraud Maintenance Tools, including any filters or settings you enable.

Section 2 — Fees, Payouts, Taxes and Account Activity

2.01 Fees

In exchange for us providing you with the Braintree Payment Services, you agree to pay us the fees, including applicable transaction, multi-currency and Chargeback fees, as listed in the fee schedule, available at https://www.braintreepayments.com/braintree-pricing, and incorporated herein by this reference. We reserve the right to revise our fees at any time, subject to a thirty (30) day notice period to you prior to the new fees taking effect. Interest shall accrue at the lower rate of 1.5% per month, or the maximum amount permitted by law, on all overdue amounts. In the event that you have a good faith dispute as to the amounts due, you agree to pay the undisputed amounts. Interest shall not accrue on any disputed amounts so long as you pay such amounts within thirty (30) calendar days after resolution of the dispute.

2.02 Payment of Fees, Payouts, Right to Set-off and Receipt of Customer Payments

Subject to the terms of this Agreement, Braintree will instruct the Acquirer to remit to your Bank Account or to a Hyperwallet Settlement Account (if available to you), as duly nominated by you, all amounts due to you from your Transactions, minus any fees, Reversals, Invalidated Payments, Chargebacks, Refunds, setoffs, recoupments or other amounts that you owe to Braintree under this Agreement. You authorize us (any related notice and demand are hereby expressly waived) to set-off, recoup and to appropriate and to apply any and all balances or funds or other amounts we may owe you again and on account of your obligations, whether such obligations are liquidated, unliquidated, fixed, contingent, matured or unmatured. If the Payout is not sufficient to cover the amounts due, without limiting our other rights and remedies (all of which are cumulative), you agree that we may debit your Bank Account for the applicable amounts, and/or recoup or set-off the applicable amounts against future Payouts. Upon Braintree’s request, you agree to provide Braintree with all necessary bank account routing and related information and grant Braintree permission to debit amounts due from your Bank Account.

You represent and warrant to Braintree that each transaction that you process using the Braintree Payment Services is solely in payment for your provision of bona fide goods or services (including charitable services) to your Customers. To the extent any Transaction funds are received by Braintree from your Customers, you hereby designate Braintree, and Braintree hereby agrees to serve, as your limited agent for the sole purpose of receiving such payments on your behalf from your Customers. You agree that upon Braintree receiving payment from a Customer: (a) you shall be deemed to have received payment from such Customer; (b) such Customer’s obligation to you in connection with such payment shall be satisfied in full; (c) any claim you have for such payment against Customer shall be extinguished and (d) you are obligated to deliver the applicable goods or services to the Customer, in each case regardless of whether or when Braintree instructs Acquirer to remit such payment to you. Any receipt provided to the Customer shall be binding on you and shall satisfy all applicable regulatory requirements. This paragraph states the entirety of Braintree’s duties as your agent for receipt of payment, and no other duties shall be implied by Braintree’s undertaking to act in that capacity. This paragraph does not limit in any way Braintree’s rights against you or any funds held by Braintree, including any right of set-off or security interest in such funds.

2.03 Taxes

Merchant shall pay, indemnify, and hold Braintree harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on Braintree’s income, and (ii) all government permit fees, customs fees and similar fees which Braintree may incur with respect to this Agreement. Such taxes, fees and duties paid by Merchant shall not be considered a part of, a deduction from, or an offset against, payments due to Braintree hereunder.

2.04 Account Activity

With respect to Merchant’s account activity accessible through the Braintree Payment Services, Merchant may report to Braintree any discrepancy relating to Transactions, Payouts, fees and amounts owed by Merchant under this Agreement. Merchant shall notify Braintree in writing of any such discrepancy within ninety (90) days of the date the data is made available to Merchant through the Braintree Payment Services. Following the expiration of this period, Merchant’s account activity shall be deemed as accepted and agreed by Merchant and Braintree shall have no obligation to correct any errors or discrepancies identified after such period.

Section 3 —Restricted Activities, Representations and Warranties, American Express Card Acceptance

3.01 Restricted activities

In connection with your use of the Braintree Payment Services, you must comply with the Braintree Acceptable Use Policy: https://www.braintreepayments.com/legal/acceptable-use-policy.

You agree that you will not:

  • (a) Breach this Agreement, the Bank Agreement, or any other agreement that you have entered into with us in connection with the Braintree Payment Services;
  • (b) Violate any federal, state, or local laws, rules, or regulations applicable to your business;
  • (c) Violate any rule, guideline, or bylaw of any of the Networks (the “Network Rules”), as they may be amended by the Networks from time to time. Some of the Network Rules are available for Visa, Mastercard, American Express, and Discover.
  • (d) Fail to provide us with any information that we reasonably request, in connection with this Agreement or your use of the Braintree Payment Services, about you or your business activities, including updated business records or financial statements, or provide us with false, inaccurate or misleading information;
  • (e) Refuse to cooperate in a legal investigation or audit that may be required by the Networks in connection with this Agreement or your use of the Braintree Payment Services;
  • (f) Integrate or use any of the Braintree Payment Services without complying with our requirements;
  • (g) Utilize recurring billing or card on file functionality without properly complying with Network Rules, applicable law (including but not limited to the Electronic Funds Transfer Act (Reg E)), including obtaining your Customer’s consent to be billed in such a manner, obtaining your Customer’s consent to store their card on file for future or recurring transactions and making available a mechanism for your Customer to delete their card on file;
  • (h) Submit any Transaction for processing through the Braintree Payment Services which does not represent a bona fide, permissible Transaction as outlined in this Agreement and in the Network Rules, or which inaccurately describes the product or services being sold or the charitable donations being made;
  • (i) Process Transactions or receive payments on behalf of any other party, or redirect payments to any other party;
  • (j) Display with unequal size or prominence, show preference for, or discriminate against one card brand or type over another, including your refund policies for purchases; and
  • (k) Bill or collect from any cardholder for any purchase or payment on the card unless you have the right to do so under the Network Rules.

3.02 Representations and Warranties by Merchant

Merchant has the full power and authority to execute, deliver and perform this Agreement. This Agreement is binding and enforceable against Merchant and no provision requiring Merchant’s performance is in conflict with its obligations under any agreement to which Merchant is a party.

Merchant is duly organized, authorized and in good standing under the laws of the state, region or country of its organization and is duly authorized to do business in all other states, regions or countries/regions in which Merchant’s business operates.

3.03 Additional Terms for American Express Card Acceptance

  • a. American Express may use the information obtained in your application at the time of setup to screen and/or monitor you in connection with card marketing and administrative purposes.
  • b. You may be converted from this Agreement to a direct card acceptance agreement with American Express if you reach certain monthly sales volumes. Upon conversion, (i) you will be bound by American Express' then-current Card Acceptance Agreement; and (ii) American Express will set your pricing and other fees for American Express Card acceptance.
  • c. By accepting these terms, you agree to receive commercial marketing communications from American Express. You may opt out by notifying Braintree via email at support@braintreepayments.com. If you opt out of commercial marketing communications, you will still receive important transactional or relationship messages from American Express.
  • d. American Express shall be a third party beneficiary of this Agreement for purposes of American Express Card acceptance. As a third party beneficiary, American Express shall have the right to enforce directly against you the terms of this Agreement as related to American Express Card acceptance. You acknowledge and agree that American Express shall have no responsibility of liability with regard to Braintree’s obligations to you under this Agreement.
  • e. American Express may conduct an audit of you at any time, for the purpose of determining compliance with the American Express Network Rules.
  • f. You authorize Braintree to submit transactions to, and receive settlement from, American Express, and to disclose transaction and merchant information to American Express to perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes and important transactional or relationship communications.
  • g. Merchant may terminate its acceptance of American Express at any time upon notice.

Section 4 — Liability for Invalidated Payments and other Liabilities

You are liable for all claims, expenses, fines and liability we incur arising out of:

  • (a) a Chargeback, Refund, over-payment, payment error, or other invalid payment (collectively “Invalidated Payment”);
  • (b) any error, negligence, misconduct or fraud by you, your employees, or someone acting on your behalf; and
  • (c) any losses resulting from your failure to comply with the terms of this Agreement, or your usage of the Braintree Payment Services.

In the event of an Invalidated Payment or other liability, in addition to our other rights and remedies (all of which are cumulative), we may (or instruct Acquirer to) deduct, setoff or recoup the amounts due to Braintree from your Payouts.

In addition to the above, if you have a past due amount owed to us or any of our affiliates under any other agreement, Braintree may instruct Acquirer to deduct the amounts owed from your Payouts. This includes amounts owed by your use of our various products and services which may include PayPal, Venmo and Hyperwallet.

Section 5 — Actions We May Take

5.01 Credit Report Authorization and Verification of Information

You authorize Braintree, directly or through third parties, to make any inquiries or take any actions we consider necessary to validate your identity, evaluate your creditworthiness, and verify information that you have provided to us. You authorize Braintree to obtain financial and credit information, such as pulling your personal credit report, or the credit report for your directors, officers, and principals. By completing your application to become a Braintree customer, you are providing Braintree with written instructions and authorization in accordance with the Fair Credit Reporting Act to obtain such financial information or credit reports.

In the event that we are unsuccessful in receiving satisfactory information for us to verify your identity or determine that you are creditworthy, Braintree reserves the right to terminate this Agreement with immediate notice to you, cease to provide access to the Braintree Payment Services, and refuse or rescind any payment by your customers.

5.02 Actions by Braintree

If we believe that your Transactions pose an unacceptable level of risk, that you have breached the terms of this Agreement, or that your account has been compromised, we may take various actions to avoid liability. The actions we may take include, but are not limited to, suspending or limiting your ability to use the Braintree Payment Services, refusing to process any Transaction, reversing a Transaction, instructing Acquirer to hold your Payouts, and contacting your customers to verify Transactions and reduce potential fraud and disputes. If possible, we will provide you with advance notice of our actions and resolution steps. However, advance notice will not be provided if there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.

5.03 Reserves

Braintree, in its sole discretion, may instruct Acquirer to place a Reserve on a portion of your Payouts in the event that we believe that there is a high level of risk associated with your business, your Bank-sponsored Merchant Account, your PayPal account or your Transactions. If we place a reserve on your Payouts, we will provide you with notice specifying the terms of the Reserve. The terms may require that a certain percentage of your Payouts are held for a certain period of time, that a fixed amount of your Payouts are withheld from payout to you, or such other restrictions that Braintree determines in its sole discretion. Braintree may change the terms of the Reserve at any time by providing you with notice of the new terms.

Braintree may hold a Reserve as long as it deems necessary, in its sole discretion, to mitigate any risks related to your Transactions. You agree that you will remain liable for all obligations related to your Transactions even after the release of any Reserve. In addition, we may require you to keep your Bank Account available for any open settlements, Chargebacks and other adjustments.

5.04 Security Interest

As security for the payment and performance of all of your now existing or hereinafter arising or incurred obligations under this Agreement or any other obligation to Braintree, you grant to Braintree a lien on, and security interest in and to, all your now existing or hereafter right, title and/or interest in, to or under this Agreement, the Reserve, all funds held in Reserve, all Reserves at any time established in accordance with this Agreement, and all proceeds of any of the foregoing. Merchant agrees to duly execute and deliver to Braintree such instruments and documents as may be required to perfect and otherwise give effect to the lien and security interest granted to Braintree under this Agreement.

Section 6 – Account Security, Data, Intellectual Property and Publicity

6.01 Security of your access

You agree to:

  • (a) Not allow anyone else to have or use your password details and to comply with all reasonable instructions we may issue regarding account access and security. In the event you share your password details, Braintree will not be liable to you for losses or damages caused by such sharing;
  • (b) Keep your personal details up to date. We may be unable to respond to you if you contact us from an address, telephone number or email account that is not registered with us; and
  • (c) Take all reasonable steps to protect the security of the personal electronic device through which you access the Braintree Payment Services (including, without limitation, using PIN and/or password protected personally configured device functionality to access the Braintree Payment Services and not sharing your device with other people).

6.02 Data Security Compliance

Merchant agrees to comply with applicable data privacy and security requirements under the Payment Card Industry Data Security Standard ("Network PCI DSS Requirements”) and any applicable Network data security requirements (including those made available by Visa, MasterCard, American Express and Discover) with regards to Merchant’s use, access, and storage of certain credit card non-public personal information. In order to verify your compliance with Network PCI DSS Requirements, you must complete and demonstrate certification pursuant to the requirements that we notify to you. Additionally, Merchant agrees to comply with its obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information. You must report any Customer Data breach or incident to Braintree and/or the Networks immediately after discovery of the incident. You also agree to ensure data quality and that any Customer Data is processed promptly, accurately and completely, and complies with the Networks’ technical specifications.

Braintree agrees to comply with the applicable Payment Card Industry Data Security Standard ("PCI DSS"). Braintree acknowledges that it is responsible for the security of cardholder data it possesses or otherwise stores, processes or transmits on behalf of the Merchant, or to the extent that Braintree could impact the security of the cardholder data environment.

6.03 Ownership of Data

All Customer Data shall be owned by Merchant and Merchant hereby grants Braintree a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display Customer Data for the following purposes: (i) providing and improving the Braintree Payment Services, including the collection, processing and useof Customer Data for the purposes of Braintree providing and improvingthe Fraud Maintenance Tools as part of the Braintree Payment Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymized and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer. Merchant undertakes to provide all notices and obtain all consents necessary for Braintree’s use of Customer Data set out above.

6.04 Data Protection

The data protection terms applicable to this Agreement are set out in Exhibit A (Data Protection Addendum) and are hereby incorporated by reference into this Agreement.

6.05 Software License

Braintree grants you a revocable, non-exclusive, non-transferable, royalty-free limited license to access and/or use Braintree’s APIs, developer’s toolkit, and other software in accordance with the accompanying documentation made available by Braintree for purposes of using the Braintree Payment Services. This license grant includes all updates, upgrades, new versions and replacement software for your use in connection with the Braintree Payment Services. If you do not comply with the documentation and any other requirements provided by Braintree, then you will be liable for all resulting damages suffered by you, Braintree and third parties. Unless otherwise provided by applicable law, you agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. Upon expiration or termination of this Agreement, you will immediately cease all use of any Software.

6.06 Trademark License

Braintree grants you a revocable, non-exclusive, non-transferable license to use Braintree’s trademarks used to identify the Braintree Payment Service (the “Trademarks”) solely in conjunction with the use of the Braintree Payment Service. Merchant agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to Braintree (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising and use of all of the Trademarks, including the logos and trademarks of the Networks.

6.07 Intellectual Property

Other than the express licenses granted by this Agreement, Braintree grants no right or license by implication, estoppel or otherwise to the Braintree Payment Service or any Intellectual Property Rights of Braintree. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of Braintree, in the Braintree Payment Service) and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein.

6.08 Publicity

Merchant hereby grants Braintree permissions to use Merchant’s name and logo in its marketing materials including, but not limited to use on Braintree’s website, in customer listings, in interviews and in press releases.

6.09 Confidential Information

The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Braintree Payment Services and the know how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.

Section 7 - Indemnification, Limitation of Liability, Disclaimer of Warranties

7.01 Indemnification

Merchant agrees to indemnify, defend, and hold harmless Braintree, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of (i) your breach of this Agreement or any other agreement you enter into with Braintree or its suppliers in relation to your use of the Braintree Payment Services; (ii) your use of the Braintree Payment Services; (iii) your acts or omissions; and/or (iv) your violation of any applicable law, regulation, or Network Rules and requirements.

7.02 LIMITATION OF LIABILITY

BRAINTREE SHALL NOT BE LIABLE TO YOU OR A THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BRAINTREE PAYMENT SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF BRAINTREE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL BRAINTREE’S TOTAL AGGREGATE LIABILITY TO MERCHANT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE DIRECT DAMAGES SUFFERED BY SUCH PARTY IN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY MERCHANT TO BRAINTREE UNDER THIS AGREEMENT DURING THE FIRST TWELVE (12) MONTH PERIOD AFTER THE EFFECTIVE DATE OF THIS AGREEMENT.

7.03 Disclaimer of Warranties

THE BRAINTREE PAYMENT SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. BRAINTREE DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BRAINTREE OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF BRAINTREE’S OBLIGATIONS.

The parties acknowledge that the Braintree Payment Service is a computer network based service which may be subject to outages and delay occurrences. As such, Braintree does not guarantee continuous or uninterrupted access to the Braintree Payment Services. Merchant further acknowledges that access to the Braintree website or to the Braintree Payment Services may be restricted for maintenance. Braintree will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, Braintree will not be liable for any interruption, outage, or failure to provide the Braintree Payment Services.

7.04 ATTORNEY’S FEES; INSOLVENCY AND OTHER PROCEEDINGS

If it becomes necessary for Braintree to use legal counsel to enforce or prevent a breach of this Agreement or your obligations, whether or not suit is filed, you will immediately reimburse us for reasonably incurred attorney fees and other costs and expenses. You will also immediately reimburse us for all reasonable attorney's fees and costs incurred in connection with the representation of Braintree in any bankruptcy, insolvency, reorganization, or other debtor-relief or similar proceeding of or relating to (a) Merchant, (b) any person liable (by way of guaranty, assumption, endorsement, or otherwise) on any of the obligations under this Agreement, (c) this Agreement, or (d) any property that secures any of your obligations under this Agreement.

Section 8 - Term and Termination; Dormancy

8.01 Term and Termination

The term of this Agreement shall commence on the Effective Date and shall continue on until terminated as set forth herein. You may terminate this Agreement, without cause, by providing Braintree with notice of your intent to terminate, or by ceasing to use the Braintree Payment Services.

Braintree may terminate this Agreement or suspend services to you if any of the following occurs: (1) we are required by the Networks, the Acquirer, or an order from a regulatory body to cease providing services to you; (2) we believe that you have breached this Agreement, or are likely to do so; (3) if we determine that your use of the Braintree Payment Services carries an unacceptable amount of risk, including credit or fraud risk; or (4) any other legal, reputational, or risk-based reason exists, in Braintree’s sole discretion. In the event that Braintree must terminate this Agreement, Braintree shall provide you with written notice as soon as reasonably practicable.

After termination by either party as described above, Merchant shall no longer have access to, and shall cease all use of the Braintree Payment Services. Any termination of this Agreement does not relieve Merchant of any obligations to pay any fees, costs, penalties, Chargebacks or any other amounts owed by you to us as provided under this Agreement, whether accrued prior to or after termination.

8.02 Dormancy

If there is no processing activity through your Bank-sponsored Merchant Account(s) for a period of twelve (12) months or longer, PayPal may close such inactive Bank-sponsored Merchant Account(s) and terminate the Gateway Services upon written notice. If required by applicable law, PayPal will escheat (send) any outstanding funds to your state of residency. If you would like to claim any escheated funds from the applicable state, please contact the applicable state’s unclaimed property administrator. You will remain liable for all outstanding obligations under this Agreement related to your Bank-sponsored Merchant Account(s) prior to closure.

Section 9 – General Provisions

9.01 Independent Contractors

Except as provided in Section 2.02 of this Agreement, the relationship of Braintree and Merchant is that of independent contractors. Neither Merchant nor any of its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of Braintree, nor do they have any authority to bind Braintree by contract or otherwise to any obligation. None of such parties will represent anything to the contrary, either expressly, implicitly, by appearance or otherwise

9.02 Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.

9.03 Waiver

No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.

9.04 Assignment

This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Merchant may not assign this Agreement without the written consent of Braintree. Braintree may assign this Agreement in its sole discretion without the written consent of Merchant.

9.05 Amendment

We may amend this Agreement at any time by posting a revised version of it on our website under the “Legal” section of our website. The revised version will be effective at the time we post it. In addition, if our changes reduce your rights or increase your responsibilities, we will provide you with at least 30 days’ prior notice by posting notice under the “Policy Updates” section contained in the “Legal” section of our website. If you do not agree to the updated terms, you can terminate your Agreement by providing us with notice in the manner indicated below in Section 9.09. If you provide us with termination notice within 30 days of the date of update, then your current terms and conditions shall apply during this notice period.

9.06 Entire Agreement

This Agreement sets forth the entire agreement and understanding of the parties hereto in respect to the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.

9.07 Survival

Sections 2 (Fees and Tax), 4 (Liability for Chargebacks, Invalidated Payments and other Liabilities), 5 (Actions We May Take), 6.08 (Confidential Information), 7 (Indemnification, Limitation of Liability, Disclaimer of Warranties), 8 (Term and Termination, Data Portability), 9 (General Provisions), Exhibit “A” (Data Protection Addendum) and Exhibit “B” (Definitions), as well as any other terms which by their nature should survive, will survive the termination of this Agreement.

9.08 Communication; Recording Calls; and Availability of Contractual Documents

You consent to receive autodialed or prerecorded calls and text messages from Braintree at any telephone number that you have provided us or that we have otherwise obtained to (i) notify you regarding your account; (ii) collect a debt; (iii) resolve a dispute; (iv) contact you about exclusive offers; or (v) as otherwise necessary to service your account or enforce the Agreement. Standard telephone minute and text charges may apply.

We may share your telephone numbers with our service providers (such as billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under the Agreement, our policies, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.

Braintree may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Braintree or its agents for quality control and training purposes or for its own protection.

If you have a question or complaint relating to the Braintree Payment Services or your Transactions, please contact the Braintree customer support as defined in the “Contact” tab of the Braintree website. The general terms and conditions for the Braintree Payment Services will be available at all times on www.braintreepayments.com in the “Legal” tab, and/or be made available during signup process as an electronic copy per e-mail. You may request at any time free of charge electronic copy of your contractual documents.

9.09 Notices, Contracting Entity, Governing Law, and Jurisdiction

a. Contracting Entity. “PayPal,” “Braintree,” “we,” and “our” in this Agreement refer to PayPal, Inc., a Delaware corporation in the United States whose address is 2211 North First Street, San Jose, CA 95131.

b. Notice to Merchant. Merchant agrees that Braintree may provide notices and disclosures to Merchant by posting them on Braintree’s website, emailing them to Merchant, or sending them to Merchant through postal mail. Notices sent to Merchant by postal mail are considered received by Merchant within three (3) Business Days of the date Braintree sends the notice unless it is returned to Braintree. Disclosures and notices posted on Braintree’s website or emailed shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered. Furthermore, you understand and agree that if Braintree sends you an email but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic communications, Braintree will be deemed to have provided the communication to you. In addition, Braintree may send Merchant emails, including, but not limited to, those relating to product updates, new features and offers and Merchant hereby consents to such email notification. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy.

c. Notices to Braintree. Notice to Braintree shall be considered valid only if sent by postal mail to PayPal, Inc., Attention: Legal Department, 2211 North First Street, San Jose, California 95131.

d. Choice of law and jurisdiction. The laws of the State of Delaware, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between the parties, except as otherwise stated in this Agreement.

9.10 Agreement to Arbitrate

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW CLAIMS YOU AND BRAINTREE HAVE AGAINST EACH OTHER ARE RESOLVED.

You and Braintree agree that any and all disputes or claims that have arisen or may arise between you and Braintree shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this provision.

THE PARTIES ALSO AGREE THAT YOU AND BRAINTREE MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BRAINTREE AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER BRAINTREE MERCHANTS.

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. All issues are for the arbitrator to decide, except that issues relating to arbitrability, or the scope or enforceability of this Agreement to Arbitrate, shall be for a court of competent jurisdiction to decide. If a court decides that any part of this Section 9.10 is invalid or unenforceable, the other parts of this Section 9.10 shall still apply.

The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Braintree may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Braintree subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Braintree may attend by telephone, unless required otherwise by the arbitrator(s).

The arbitrator(s) will decide the substance of all claims in accordance with the laws of the State of Delaware, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different merchants, but is/are bound by rulings in prior arbitrations involving the same merchant to the extent required by applicable law. The arbitration award shall be final and binding and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

EXHIBIT A – Data Protection Addendum

This Data Protection Addendum (“Addendum”) is entered into between Merchant and PayPal, Inc., a Delaware corporation whose address is 2211 North First Street, San Jose, CA 95131 ("Braintree" or “PayPal”) (collectively the “Parties”). This Addendum shall form part of the Payment Services Agreement between Merchant and Braintree (the “Agreement”) in accordance with the “Effect of this Addendum” section below.

Capitalized terms used but not defined in this Addendum shall have the meaning set out in the Agreement.

EFFECT OF THIS ADDENDUM

This Addendum amends and forms part of the Agreement, and is effective as of the Effective Date of the Agreement.

1 DEFINITIONS AND INTERPRETATION

1.1 The following terms have the following meanings when used in this Addendum:

  • Card Information” is defined in Section 3.14 of this Addendum.
  • Customer" means an EU customer of Merchant and for the purposes of this Addendum, is a data subject.
  • Customer Data" means the personal data that (i) the Customer provides to Merchant and Merchant passes on to Braintree through the use by Merchant of the Braintree Payment Services and (ii) Braintree collects from the Customer’s device and browser through use by the Merchant of the Braintree Payment Services.
  • data controller" (or simply "controller") and "data processor" (or simply "processor") and "data subject" have the meanings given to those terms under the Data Protection Laws.
  • Data Protection Laws" means EU Directive 95/46/EC or Regulation (EU) 2016/679 (GDPR) and any associated regulations or instruments and any other data protection laws, regulations, regulatory requirements and codes of conduct of EU Member States applicable to Braintree's provision of the Services.
  • Data Recipient” is defined in Section 3.14 of this Addendum.
  • Merchant Data" means any personal data relating to business contact details of Merchant or its employees, officers or contractors provided to or obtained by Braintree in the provision of the Services.
  • PayPal Group" means PayPal and all companies in which PayPal or its successor directly or indirectly from time to time owns or controls.
  • personal data" has the meaning given to it in the Data Protection Laws.
  • processing" has the meaning given to it in the Data Protection Laws and "process", "processes" and "processed" will be interpreted accordingly. 
  • Security Incident" means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data on systems managed by or otherwise controlled by Braintree.
  • Services" means the "Braintree Payment Services" as defined in the Agreement.
  • Sub-processor" means any processor engaged by PayPal and/or its affiliates in the processing of personal data.

1.2 Addendum. This Addendum comprises (i) sections 1 to 4, being the main body of the Addendum; (ii) Attachment 1; (iii) Attachment 2; and (iv) Attachment 3.

2 PROCESSING OF PERSONAL DATA IN CONNECTION WITH THE SERVICES

2.1 Braintree is the controller in respect of Merchant Data and may use it for the following purposes as provided for in the Braintree Privacy Policy:

2.1.1 as reasonably necessary to provide the Services to Merchant;

2.1.2 to conduct anti-money laundering, know your customer and fraud checks on the Merchant;

2.1.3 to market to the employees and contractors of Merchant; and

2.1.4 any other purpose that it notifies (or Merchant agrees to notify on its behalf) to the employees and contractors of Merchant in accordance with Data Protection Laws.

2.2 Braintree shall comply with the requirements of the Data Protection Laws applicable to controllers in respect of the use of Merchant Data under this Agreement (including without limitation, by implementing and maintaining at all times all appropriate security measures in relation to the processing of Merchant Data and by maintaining a record of all processing activities carried out in respect of Merchant Data) and shall not knowingly do anything or permit anything to be done with respect to the Merchant Data which might lead to a breach by the Merchant of the Data Protection Laws.

2.3 With regard to any Customer Data to be processed by Braintree in connection with this Agreement, Merchant will be a controller and Braintree will be a processor in respect of such processing. Merchant will be solely responsible for determining the purposes for which and the manner in which Customer Data are, or are to be, processed.

2.4. Braintree shall only process Customer Data on behalf of and in accordance with Merchant’s written instructions. The Parties agree that this Addendum is Merchant's complete and final written instruction to Braintree in relation to Customer Data. Additional instructions outside the scope of this Addendum (if any) require prior written agreement between Braintree and Merchant, including agreement of any additional fees payable by Merchant to Braintree for carrying out such additional instructions. Merchant shall ensure that its instructions comply with all applicable laws, including Data Protection Laws, and that the processing of Customer Data in accordance with Merchant's instructions will not cause Braintree to be in breach of Data Protection Laws. Merchant hereby instructs Braintree to process Customer Data for the following purposes:

2.4.1 as reasonably necessary to provide the Services to Merchant;

2.4.2 after anonymizing the Customer Data, to use that anonymized Customer Data, directly or indirectly, which is no longer identifiable personal data, for any purpose whatsoever.

2.5 In relation to Customer Data processed by Braintree under this Agreement, Braintree shall co-operate with Merchant to the extent reasonably necessary to enable Merchant to adequately discharge its responsibility as a controller under Data Protection Laws, including without limitation that Braintree shall cooperate and provide Merchant with such reasonable assistance as Merchant requires in relation to:

2.5.1. assisting Merchant in the preparation of data protection impact assessments to the extent required of Merchant under Data Protection Laws; and

2.5.2 responding to binding requests for the disclosure of information as required by local laws, provided always that where the request is from a non-EEA law enforcement agency Braintree will (a) inform Merchant of the request, the data concerned, response time, the identity of the requesting body and the legal basis for the request; (b) wait for Merchant’s instructions provided the instruction and the opinion are received within a reasonable period of time, which shall be assessed in light of the time period afforded by the law enforcement agency to Braintree; (c) where Braintree is prohibited from informing Merchant about the law enforcement agency’s request, take reasonable steps to have this prohibition waived and to make available relevant information about the request as soon as possible to Merchant (these efforts will be documented); and (d) where the prohibition cannot be waived, compile a list, in compliance with its national law and on an annual basis, of the number of such requests received, the type of Customer Data requested and the identity of the law enforcement agency concerned and make it available to the Customer’s data protection authority annually on request (in which circumstances Braintree will be acting as a controller).

2.6 Scope and Details of Customer Data processed by Braintree. The objective of processing Customer Data by Braintree is the performance of the Services pursuant to the Agreement. Braintree shall process the Customer Data in accordance with the specified duration, purpose, type and categories of data subjects as set out in Attachment 3 (Data Processing of Customer Data).

2.7 The Parties will at all times comply with Data Protection Laws.

2.8 Merchant undertakes to provide all notices and obtain all consents necessary for Braintree’s use of Merchant Data and Customer Data set out above.

3 DATA PROCESSOR TERMS

This section 3 applies only to the extent that Braintree acts as a processor or Sub-processor to Merchant. It does not apply where Braintree acts as a controller.

3.1 Correction, Blocking and Deletion. To the extent Merchant, in its use of the Services, does not have the ability to correct, amend, block or delete Customer Data, as required by Data Protection Laws, Braintree shall comply with any commercially reasonable request by Merchant to facilitate such actions to the extent Braintree is legally permitted to do so. To the extent legally permitted, Merchant shall be responsible for any costs arising from Braintree’s provision of such assistance.

3.2 Data Subject Requests. Braintree shall, to the extent legally permitted, promptly notify Merchant if it receives a request from a Customer for access to, correction, amendment or deletion of that Customer’s personal data. Braintree shall not respond to any such Customer request without Merchant’s prior written consent except to confirm that the request relates to Merchant to which Merchant hereby agrees. Braintree shall provide Merchant with commercially reasonable cooperation and assistance in relation to handling of a Customer's request for access to that person’s personal data, to the extent legally permitted and to the extent Merchant does not have access to such Customer Data through its use of the Services. If legally permitted, Merchant shall be responsible for any costs arising from Braintree’s provision of such assistance.

3.3 Confidentiality. Braintree shall ensure that its personnel engaged in the processing of Customer Data are informed of the confidential nature of the Customer Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Braintree shall ensure that such confidentiality obligations survive the termination of the personnel engagement.

3.4 Training. Braintree undertakes to provide training as necessary from time to time to the Braintree personnel with respect to Braintree's obligations in this Addendum to ensure that the Braintree personnel are aware of and comply with such obligations.

3.5 Limitation of Access. Braintree shall ensure that access by Braintree's personnel to Customer Data is limited to those personnel performing Services in accordance with the Agreement. 3.6 Data Protection Officer. Members of the PayPal Group have appointed a data protection officer where such appointment is required by Data Protection Laws. The appointed person may be reached at PayPal (Europe) S.à.r.l. et Cie, S.C.A., 22-24 Boulevard Royal L-2449, Luxembourg.

3.7 Sub-processors.  Merchant specifically authorizes the engagement of members of the PayPal Group as Sub-processors in connection with the provision of the Services. In addition, Merchant generally authorizes the engagement of any other third parties as Sub-processors in connection with the provision of the Services. When engaging any Sub-processor, Braintree will execute a written contract with the Sub-processor which contains terms for the protection of Customer Data which are no less protective than the terms set out in this Addendum.

3.7.1 List of Current Sub-processors and Notification of New Sub-processors. Braintree shall make available to Merchant a current list of Sub-processors for the respective Services with the identities of those Sub-processors (“Sub-processor List”). The Sub-processor List is included in Attachment 1 to this Addendum. Where a Sub-processor is proposed to be changed Braintree shall provide prior notice by email to Merchant before implementing such change.

3.7.2 Objection Right for new Sub-processors. If Merchant has a reasonable basis to object to Braintree’s use of a new Sub-processor, Merchant shall notify Braintree promptly in writing within two (2) months after receipt of Braintree’s notice. In the event Merchant objects to a new Sub-processor(s) and that objection is not unreasonable Braintree will use reasonable efforts to make available to Merchant a change in the affected Services or recommend a commercially reasonable change to Merchant’s configuration or use of the affected Services to avoid processing of personal data by the objected-to new Sub-processor without unreasonably burdening Merchant. If Braintree is unable to make available such change within a reasonable period of time, which shall not exceed sixty (60) days, Merchant may terminate the Agreement in respect only of those Services which cannot be provided by Braintree without the use of the objected-to new Sub-processor, by providing no less than sixty (60) days' written notice to Braintree. Merchant shall receive a refund of any prepaid fees for the period following the effective date of termination in respect of such terminated Services.

3.8 Audits and Certifications. Where requested by Merchant, subject to the confidentiality obligations set forth in the Agreement, Braintree shall make available to Merchant (or Merchant’s independent, third-party auditor that is not a competitor of Braintree or any members of PayPal or the PayPal Group) information regarding Braintree’s compliance with the obligations set forth in this Addendum in the form of the third-party certifications and audits (if any) set forth in the Privacy Policy set out on our website. Merchant may contact Braintree in accordance with the “Notices” Section of the Agreement to request an on-site audit of the procedures relevant to the protection of personal data. Merchant shall reimburse Braintree for any time expended for any such on-site audit at Braintree’s then-current professional services rates, which shall be made available to Merchant upon request. Before the commencement of any such on-site audit, Merchant and Braintree shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Merchant shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Braintree. Merchant shall promptly notify Braintree with information regarding any non-compliance discovered during the course of an audit.

3.9 Security. Braintree shall, as a minimum, implement and maintain appropriate technical and organizational measures as described in Attachment 2 to this Addendum to keep Customer Data secure and protect it against unauthorized or unlawful processing and accidental loss, destruction or damage in relation to the provision of the Services. Since Braintree provides the Services to all Merchants uniformly via a hosted, web-based application, all appropriate and then-current technical and organizational measures apply to Braintree’s entire customer base hosted out of the same data center and subscribed to the same service. Merchant understands and agrees that the technical and organizational measures are subject to technical progress and development. In that regard, Braintree is expressly permitted to implement adequate alternative measures as long as the security level of the measures is maintained in relation to the provision of the Services. In the event of any detrimental change Braintree shall provide a notification together with any necessary documentation to Merchant by email or publication on a website easily accessible by Merchant.

3.10 Security Incident Notification. If Braintree becomes aware of a Security Incident in connection with the processing of Customer Data, Braintree will: (a) notify Merchant of the Security Incident promptly and without undue delay; and (b) promptly take reasonable steps to minimize harm and secure Customer Data.

3.11 Details of Security Incident. Notifications made under section 3.10 (Security Incident Notification) will describe, to the extent possible, reasonable details of the Security Incident, including steps taken to mitigate the potential risks.

3.12 Communication. Braintree will deliver its notification of any Security Incident to one or more of Merchant's administrators by any means Braintree selects, including via email. Merchant is solely responsible for maintaining accurate contact information and ensuring that any contact information is current and valid.

3.13 Deletion. Upon termination or expiry of the Agreement, Braintree will delete or return to Merchant all Customer Data processed on behalf of the Merchant, and Braintree shall delete existing copies of such Customer Data except where necessary to retain such Customer Data strictly for the purposes of compliance with applicable law.

3.14 Data Portability. Upon any termination or expiry of this Agreement, Braintree agrees, upon written request from Merchant, to provide Merchant’s new acquiring bank or payment service provider (“Data Recipient”) with any available credit card information including personal data relating to Merchant’s Customers (“Card Information”). In order to do so, Merchant must provide Braintree with all requested information including proof that the Data Recipient is in compliance with the Network PCI-DSS Requirements and is level 1 PCI compliant. Braintree agrees to transfer the Card Information to the Data Recipient so long as the following applies: (a) Merchant provides Braintree with proof that the Data Recipient is in compliance with the Network PCI-DSS Requirements (Level 1 PCI compliant) by providing Braintree a certificate or report on compliance with the Network PCI-DSS Requirements from a qualified provider and any other information reasonably requested by Braintree; (b) the transfer of such Card Information is compliant with the latest version of the Network PCI-DSS Requirements; and (c) the transfer of such Card Information is allowed under the applicable Network Rules, and any applicable laws, rules or regulations (including Data Protection Laws).

This Addendum shall take effect between, and become legally binding on the Parties on the date determined by “Effect of this Addendum” section above.

Attachment 1

Sub-processor List

  1. Kount Inc: 917 South Lusk, 3rd Floor, Boise, ID 83706

  2. Amazon Web Services, Inc.: 410 Terry Avenue, North Seattle, WA 98109-5210

  3. CardinalCommerce Corporation: 8100 Tyler Blvd., Mentor, OH 44060

Attachment 2

The following technical and organizational measures will be implemented:

  1. Measures taken to prevent any unauthorized person from accessing the facilities used for data processing (e.g. secured access, badges);
  2. Measures taken to prevent data media from being read, copied, amended or moved by any unauthorized persons (e.g. data kept in locked premises);
  3. Measures taken to prevent the unauthorized introduction of any data into the information system, as well as any unauthorized knowledge, amendment or deletion of the recorded data (e.g. restricted access to the IT infrastructure);
  4. Measures taken to prevent data processing systems from being used by unauthorized person using data transmission facilities (e.g. firewalls);
  5. Measures taken to guarantee that authorized persons when using an automated data processing system may access only data that are within their competence (e.g. specific users accounts);
  6. Measures taken to guarantee the checking and recording of the identity of third parties to whom the data can be transmitted by transmission facilities (e.g. VPN, encryption of data);
  7. Measures taken to guarantee that the identity of the persons having had access to the information system and the data introduced into the system can be checked and recorded ex post facto at any time and by any authorized person;
  8. Measures taken to prevent data from being read, copied, amended or deleted in an unauthorized manner when data are disclosed and data media transported;
  9. Measures taken to safeguard data by creating backup copies (encryption of data back-ups).

Attachment 3

Data Processing of Customer Data

Categories of data subjects

Customer Data – The personal data that the Customer provides to Merchant and Merchant passes on to Braintree through the use by the Customer of the Braintree Payment Services.

Subject-matter of the processing

The payment processing services offered by Braintree which provides Merchant with the ability to accept credit cards, debit cards, and other payment methods on a website or mobile application from Customers.

The payment processing services include the optional use of Fraud Maintenance Tools by Merchant to detect fraudulent transactions.

Nature and purpose of the processing

Braintree processes Customer Data that is sent by the Merchant to Braintree for purposes of obtaining verification or authorization of the Customer’s payment method as payment to the Merchant for the sale goods or services.

Braintree processes Customer Data that is collected by Braintree or sent from Merchant to Braintree for the purposes of Braintree making the Fraud Maintenance Tools available to Merchant. Braintree collects, processes and uses Customer Data on behalf of Merchant in order to analyze the Customer Data and use it to identify fraudulent transactions on Merchants’ websites or mobile applicationsas further described in the Payment Services Agreement.

Type of personal data

Customer Data – Merchant shall inform Braintree of the type of Customer Data Braintree is required to process under this Agreement. Should there be any changes to the type of Customer Data Braintree is required to process then Merchant shall notify Braintree immediately. Braintree processes the following Customer Data, as may be provided by the Merchant to Braintree from time to time:

Full name……………………………………………

Date of birth……………………………………………

Home address……………………………………………

Shipping address……………………………………………

Work address……………………………………………

Billing address……………………………………………

Email address……………………………………………

Telephone number……………………………………………

Fax number……………………………………………

Government ID number……………………………………………

Bank account number and bank routing number……………………………………………

Financial account number……………………………………………

Card or payment instrument type……………………………………………

Card Primary Account Number (PAN) or Device-specific Primary Account Number (DPAN)

……………………………………………

Card Verification Value (CVV)……………………………………………

Card expiration date……………………………………………

Business tax ID……………………………………………

Username……………………………………………

Password……………………………………………

IP address……………………………………………

Device data*……………………………………………

Browser data*……………………………………………

*As further detailed in the Fraud Maintenance Tools documentation made available by Braintree from time to time.

Special categories of data (if relevant)

The transfer and processing of special categories of data is not anticipated.

Duration of Processing

The term of the Agreement.

EXHIBIT B – Definitions

  • Acquirer” means the financial institution that provides acquiring services to Merchant under the terms of the Bank Agreement.
  • Agreement” means this Braintree Payment Services Agreement, including all exhibits and other agreements and documents incorporated herein.
  • Bank Account” means the bank account that you specify to receive your Payouts.
  • Bank Agreement” means the agreement provided by the financial institution that is providing the acquiring services.
  • Bank-sponsored Merchant Account” means the merchant account(s) provisioned to Merchant by Acquirer for use as part of the Braintree Payment Services under the terms of the Bank Agreement.
  • Business Day” means a day where banks are generally open in the United States.
  • Chargeback” means a challenge to a payment that a buyer files directly with his or her credit or debit card issuer.
  • Confidential Information" is defined in Section 6.09 above.
  • Control Panel” is the user interface for the Braintree Payment Services.
  • Customer(s)” means the customer of the Merchant.
  • Customer Data” means all information, including personal data, that (i) the Customer provides to Merchant and Merchant passes on to Braintree through the use by Merchant of the Braintree Payment Services and (ii) Braintree collects from the Customer’s device and browser through use by Merchant of the Braintree Payment Services.
  • Fraud Maintenance Tools” is defined in Section 1.01 (c) above.
  • Hyperwallet” means HSI USA Inc. and its affiliates.
  • Hyperwallet Customer Funds Account” means a pooled Hyperwallet funds account designated for the benefit of merchants and segregated from Hyperwallet’s proprietary operating accounts where your funds are held in trust and in accordance with the Hyperwallet terms of service.
  • Intellectual Property Rights” means the rights owned by a party in its Intellectual Property.
  • Invalidated Payment” is defined in Section 4(a) above.
  • Merchant” or “you” means the entity and/or individual who enters into this Agreement.
  • Networks” means, collectively, Visa, MasterCard, Discover, American Express, any ATM or debit network, and the other card network organizations.
  • Network PCI-DSS Requirements” has the definition ascribed to such term in Section 6.02.
  • Network Rules” is defined in Section 3.01(c) above.
  • Payout” means the amount due to you from your Transactions minus our fees and any Refunds, Chargebacks, Reversals, setoffs, recoupments or other amounts due to Braintree.
  • Reversal” means any payment that Braintree reverses to your customer.
  • Refund” means a refund issued by you through the Braintree Control Panel or through your API access.
  • Reserve” means an amount or percentage of your Payouts that we instruct Acquirer to hold in order to protect against the risk of Reversals, Chargebacks, or any other risk, exposure and/or potential liability to us related to your use of the Braintree Payment Services.
  • Restricted Activities” means any breaches of our Acceptable Use Policy and any activity specified in Section 3.01 above.
  • Software” is defined in Section 6.05 above.
  • Trademark(s)" is defined in Section 6.06 above.
  • Transaction” means the payment of funds between you and a Customer related to the sale of goods and/or services, or charitable donations.