Terms and Conditions
Cherry Services Agreement
Last Updated: August 3, 2022.
Welcome to Cherry.
This Services Agreement (“Agreement”) is a legal agreement between Cherry Net, Inc. (DE), formerly know as Shtar, LLC (NY) (“Cherry” or “Shtar,” “us,” “our,” or “we”) and the entity accepting this Agreement (“Company”, “you,”, “your,” “user” or “Merchant”):
Company registered on the Cherry Account page to receive certain payment gateway, processing, data, technology and analytics services, and other business services that may be offered by Cherry and its affiliates (each, a “Service” and collectively the “Services”). The Services can be used by Company to execute commercial payments through electronic check and other offered payment methods (“Payment Methods”) set forth herein or as otherwise approved by Cherry to and from suppliers, merchants, or other payees of Company, with each such payment (a “Transaction” or “Payment”), requested and authorized through our website using our APIs (a “Request”). Cherry will provide the Services through its relationships with the Financial Institutions and Networks (as defined herein) that Cherry has contracted with to support the Services. Financial Institutions and Networks may be changed at any time without prior notice. This Agreement describes the terms and conditions that apply to your use of the Services.
If you do not understand any of the terms of this Agreement, please contact us before using the Services.
You may not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement. Either your signing below to accept the terms of this Agreement or your use of any Services is evidence of your acceptance of this Agreement.
Section A: General Terms
1. Overview of this Agreement
“Services” hereunder are the services that Cherry may provide to you, including providing an electronic platform to send and receive payments. Those to whom you send or from whom you receive electronic payments (senders and recipients of electronic payments through Cherry) are referred to as “Vendors.” We provide you with a more detailed description of the Services through published software libraries and application programming interfaces that may be used to access the Services (the “API”) and additional resources we make available to you on our www.cherrynet.com.
Before using the Services, you must register with Cherry and create an account (a “Cherry Account”).
Section A describes the process of registering for and using your Cherry Account.
Section B describes your use of the API and the Services.
Section C describes the Payment Gateway Services,
which are one type of Service provided by Cherry.
Section D describes the Factoring Service, being a Service provided by Cherry to some users.
Section E describes proper handling, management,
and use of data generated during your use of the Services, including your data.
Section F describes your liability to Cherry for all losses connected with your Cherry Account, your agreement to resolve all disputes with Cherry by arbitration and not in a lawsuit, and other legal terms that apply to you.
2. Your Cherry Account
a. Registration and Permitted Activities: Only businesses (including sole proprietors), bona fide charitable organizations, and other entities or persons located in the United States are eligible to apply for a Cherry Account to use the Services described in this Agreement. The Services may only be used for lawful business purposes to make payments to Vendors. Cherry and its affiliates may provide Services to you or your affiliates in other countries or regions under separate agreements.
To register for a Cherry Account, you or the person or people submitting the application (your “Representative”) must provide us with your business or trade name, address, email, phone number, tax identification number, URL, the nature of your business or activities, and certain other information about you that we require. We may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and your Cherry Account administrator. Until you have submitted, and we have reviewed and approved, all required information, your Cherry Account will be available to you on a preliminary basis only, and we may terminate it at any time and for any reason. To help the government fight the funding of terrorism and money laundering activities, Applicable Law (as defined below) may require Cherry or Financial Institutions to obtain, verify, and record information that identifies each person who receives access to the Priority Services.
If you use Payment Gateway Services, your account name and bank account number as well as the name of Your Financial Institution may appear on your Vendors’ bank or other statements. You may only use Payment Gateway Services to facilitate Payments (as defined below) with your Vendors.
b. Business Representative: You and your Representative individually affirm to Cherry that your Representative is authorized to provide the information described in this Section A.2 on your behalf and to bind you to this Agreement. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of Cherry, neither you nor your Representative may register or attempt to register for a Cherry Account on behalf of a user Cherry previously terminated from use of the Services. You may not use our Services for non-business personal or consumer transactions or activities.
If you are a sole proprietor, you affirm that you are personally responsible and liable for your use of the Services and your obligations to Vendors, including payment of any amounts owed under this Agreement.
The following special requirements apply in relation to persons that are not at least 18 years old. If you are an individual or sole proprietor, and you are not at least 18 years old, but you are 13 years old or older, your Representative must be your parent or legal guardian. If you are a legal entity that is owned, directly or indirectly, by an individual who is not at least 18 years old, but the individual is 13 years old or older, your Representative must either obtain the consent of your board or of an authorized officer. Any such approving board, authorized officer, parent, or legal guardian is responsible to Cherry and is legally bound to this Agreement as if it had agreed to the terms of this Agreement itself. You may not use the Services if you are under 13 years of age.
c. Validation and Underwriting: At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate information you provided, verify your or your Representative’s identity, and assess the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to your business and its beneficial owners or principals. If you use Payment Gateway Services, we may also request that you provide copies of financial statements or records pertaining to your compliance with this Agreement, or require you to provide a personal or company guarantee. Your failure to provide this information or material may result in suspension or termination of your Cherry Account.
You authorize us to retrieve information about you from our service providers and other third parties, including credit reporting agencies and information bureaus and you authorize and direct such third parties to compile and provide such information to us. You acknowledge that this may include your name, addresses, credit history, and other data about you. If Cherry determines, in its sole discretion, that it requires credit, background check, or other reports on the owners, officers, directors, representatives, or other principals of Company in their individual capacity, Company may not be permitted to receive the Services until Cherry has received appropriate authorization to obtain such reports and has conducted a satisfactory review. Company agrees to work with Cherry in timely obtaining any necessary authorizations from the appropriate individuals. You acknowledge that we may use your information to verify any other information you provide to us, and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of your Cherry Account. Cherry may periodically update this information as part of our underwriting criteria and risk analysis procedures.
d. Changes to Your Business, Keeping your Cherry Account Current: You agree to keep the information in your Cherry Account current. You must promptly update your Cherry Account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, or principals, or any other pertinent information. We may suspend your Cherry Account or terminate this Agreement if you fail to keep this information current. You also agree to promptly notify us in writing no more than three days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; you transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; or you receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets.
e. You agree to designate and fund a demand deposit account at a financial institution (the “Company Account”) that is used primarily for business purposes that will cover all transactions, payments, fees, and charges made in connection with or owed under this Agreement, including the Payment Gateway Services. You agree at all times to maintain a balance of available funds in the Company Account to cover Your obligations under this Agreement, including Requests. You hereby authorize Cherry, to initiate in response to a Request submitted by Company, debit and credit entries to the Payout Account and to debit and credit the same to such account. Company acknowledges that the origination of Automated Clearing House (“ACH”) transactions to Company Account must comply with the provisions of Applicable Law. This authorization is to remain in full force and effect unless and until thirty (30) calendar days after Cherry has received written notification from You of termination of the authorization. Cherry may, without prior notice or demand, obtain payment of any amount due and payable to it under this Agreement by debiting the Company Account. Cherry has no obligation to provide any Payment Gateway Services in the event Company is unable to provide funds to cover such Payments. In the event Cherry executes any transaction prior to debiting Customer’s Company Account for Fees and other monies due, Customer shall immediately pay Cherry all such amounts due.
3. Your Relationship with Your Vendors
You may only use the Services for legitimate Transactions with your Vendors. You know your Vendors better than we do, and you are responsible for your relationship with them. Cherry is not responsible for the products or services you buy or sell, or that your Vendors purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your Vendors. You may not use the Services to perform transactions for third parties or on behalf of any third party.
Cherry provides Services to you but we do not know if any particular Transaction is accurate or complete, or typical for your business. You are responsible for verifying whether a Transaction initiated by your Vendor is erroneous (such as a Vendor purchasing one item when it meant to order another), suspicious (such as unusual or large purchases, or a request for delivery to a foreign country where this typically does not occur) or fraudulent. If you are unsure if a Transaction is erroneous or suspicious, you agree to research the Transaction and, if necessary, contact your Vendor before completing the Transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Services.
4. Fees and Fines
Cherry will provide the Services to you at the rates and per transaction and other fees (collectively, including the rates, “Fees”) either communicated directly to you in writing or, in Cherry’s discretion, posted on Cherry’s website. We may revise the Fees at any time. However, we will provide you with at least 30 days’ advance notice before revisions become applicable to you (or a longer period of notice if this is required by Applicable Law).
In addition to the Fees, you are also responsible for any penalties or fines imposed in relation to your Cherry Account or use of the Services or on you or Cherry by Cherry, any Financial Institution, or Network (as those terms are defined in Section C) resulting from your use of Payment Gateway Services in a manner not permitted by this Agreement or a Financial Institution’s or Network’s rules and regulations.
You are also obligated to pay all taxes, fees and other payments imposed by any governmental authority (“Taxes”), including any value added tax, goods and services tax, provincial sales tax and/or harmonized sales tax on the Services provided under this Agreement. If you are tax-exempt, you will provide us with an appropriate certificate or other evidence of tax exemption that is satisfactory to us.
5. Services and Cherry Account Support
We will provide you with support to resolve general issues relating to your Cherry Account and your use of the Services. This support includes resources and documentation that we make available to you through the current versions of Cherry’s support pages, API documentation, and other pages on our website (collectively, “Documentation”). The most efficient way to get answers to your questions is to review our Documentation. If you still have questions after reviewing the Documentation, please contact us.
You are solely responsible for providing support to Vendors regarding the provision of Services. We are not responsible for providing support for the Services to your Vendors unless we agree to do so in a separate agreement with you or one of your Vendors.
6. Taxes and Other Expenses
Our Fees are exclusive of any applicable Taxes, except as expressly stated to the contrary. You have sole responsibility and liability for: (i) determining what, if any, Taxes apply to the sale of your products and services, acceptance of donations, or payments you receive in connection with your use of the Services; and (ii) assessing, collecting, reporting, and remitting Taxes for your business to the appropriate tax and revenue authorities. If we are required to withhold any Taxes, or we are unable to validate any tax-related identification information you provide to us, we may deduct such Taxes from amounts otherwise owed and pay them to the appropriate taxing authority. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to your tax-exempt status. Upon our reasonable request, you must provide us with information regarding your tax affairs.
We may send documents to you and tax authorities for Transactions processed using the Services. Specifically, pursuant to Applicable Law (including the Internal Revenue Code), we may be required to file periodic informational return with taxing authorities in relation to your use of the Services. If you use Payment Gateway Services, you acknowledge that we will report the total amount of payments you receive each calendar year as required by the Internal Revenue Service. We also may, but are not obliged to, electronically send you tax-related information (including, when you provide us your tax identification number, a Form 1099-K).
7. Service Requirements, Limitations and Restrictions
a. Compliance with Applicable Law: You must use the Services in a lawful manner, and must obey all laws, rules, and regulations (“Applicable Law” or “Laws”) applicable to You, Your use of the Services, and Transactions. As applicable, this may include compliance with domestic and international Laws related to the use or provision of financial services, notification and consumer protection, unfair competition, privacy, and false advertising, and any other Laws relevant to Transactions. You also agree to use the Services in compliance with all Network Rules or requirements of the Financial Institutions as provided to you.
b. Restricted Businesses and Activities: You may not use the Services to enable any person (including you) to engage in any Transactions or to benefit from any activities identified as a restricted business or activity (collectively, “Restricted Businesses”), including (i) any Restricted Businesses identified in any policies or procedures that Cherry provides to you; (ii) any business located in a country, identified on, or affiliated with an organization, entity, or person embargoed or blocked through any government list, Law, or regulation, including but not limited to those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC).
c. Other Restricted Activities: You may not use the Services to facilitate illegal Transactions or to permit others to use the Services for personal, family or household purposes. In addition, you may not, and may not allow others, to: (i) access or attempt to access non-public Cherry systems, programs, data, or services; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, Documentation, or our website except as expressly permitted by Applicable Law; (iii) act as service bureau or pass-through agent for the Services with no added value to Vendors; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (vi) reverse engineer or attempt to reverse engineer the Services except as expressly permitted by Applicable Law; (vii) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users; or (ix) impose an unreasonable or disproportionately large load on the Service.
8. Suspicion of Unauthorized or Illegal Use
We may refuse, condition, or suspend any Transactions that we believe: (i) may violate this Agreement or other agreements you may have with Cherry; (ii) are unauthorized, fraudulent or illegal; or (iii) expose you, Cherry, or others to risks unacceptable to Cherry. If we suspect or know that you are using or have used the Services for unauthorized, fraudulent, or illegal purposes, we may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency. This information may include information about you, your Cherry Account, your Vendors, and Transactions made through your use of the Services.
Transactions may be delayed or blocked in the event they do not meet our security requirements or otherwise in our sole discretion. We are not liable for any damages resulting from our decision to block a transaction.
9. Disclosures and Notices; Electronic Signature Consent
a. Consent to Electronic Disclosures and Notices: By registering for a Cherry Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from Cherry (“Notices”), including those required by applicable Law. You also agree that your electronic consent of any type (including via online portal, email, SMS or phone call verification) will have the same legal effect as a physical signature.
b. Methods of Delivery: You agree that Cherry can provide Notices regarding the Services to you through our website, through the Dashboard (as defined below), or by mailing Notices to the email or physical addresses identified in your Cherry Account. Notices may include notifications about your Cherry Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website or emailed to you.
c. SMS and Text Messages: You authorize us to provide Notices to you via text message to allow us to verify your or your Representative’s control over your Cherry Account (such as through two-step verification), and to provide you with other critical information about your Cherry Account. Standard text or data payments may apply to such Notices. Where offered, you may disable text message notifications in the Dashboard by responding to any such message with “STOP”, or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important Security Controls (as defined below) on your Cherry Account and may increase the risk of loss to your business. In the event you disable such messages, you are solely responsible for any resulting losses to your business.
d. Requirements for Delivery: It should come as no surprise to you that you will need a computer or mobile device, Internet connectivity, and an updated browser to access your Dashboard and review the Notices provided to you. If you are having problems viewing or accessing any Notices, please contact us and we can find another means of delivery.
e. Withdrawing Consent: Due to the nature of the Services, you will not be able to begin using the Services without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating your Cherry Account.
10. Termination
a. Term and Termination: This Agreement is effective upon the date you first access or use the Services and continues until terminated by you or Cherry. You may terminate this Agreement by closing your Cherry Account at any time by selecting the close account option in your user settings and ceasing to use the Service. If you use the Services again or register for another Cherry Account, you are consenting to this Agreement. We may terminate this Agreement or close your Cherry Account at any time for any reason (including, without limitation, for any activity that may create harm or loss to the goodwill of a Service) or for no reason by providing you Notice. We may suspend your Cherry Account and your ability to access funds in your Cherry Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Services because of significant fraud or credit risk, or any other risks associated with your Cherry Account; (ii) you use the Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; (iii) any Applicable Law, Financial Institution, or Network requires us to do so; or (iv) we are otherwise entitled to do so under this Agreement. Cherry, a Financial Institution, or Network may terminate your ability to use Services, at any time and for any reason, in which case you will no longer be able to utilize the Payment Gateway Services.
b. Effects of Termination: Termination does not immediately relieve you of obligations incurred by you under this Agreement. Upon termination, you agree to (i) complete all pending Transactions, (ii) stop accepting new Transactions, and (iii) immediately remove all Cherry and Network logos from your website (unless permitted under a separate license with the Network). Your continued or renewed use of the Services after all pending Transactions have been processed serves to renew your consent to the terms of this Agreement.
In addition, upon termination you understand and agree that (i) all licenses granted to you by Cherry under this Agreement will end; (ii) subject to Section E.5, we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers and destroy all documents in our possession; (iii) we will not be liable to you for compensation, reimbursement, or damages related to your use of the Services, or any termination or suspension of the Services or deletion of your information or account data; and (iv) you are still liable to us for any Fees or fines, or other financial obligation incurred by you or through your use of the Services prior to termination. As set out in detail below certain provisions of this Agreement also survive termination.
Section B: Cherry Technology
1. Dashboard, Plugin and API
Cherry has developed and provides access to plugins (a “Plugin”) or API’s that may be used to access the Services. You may use the Plugins or API’s solely as described in the Documentation to use the Services on websites and through the applications identified in your Cherry Account. You may manage your Cherry Account, connect with Financial Institutions, other Cherry users or other service providers, and enable additional features through the Cherry management dashboard (the “Dashboard”).
You may not use a Plugin or API for any purpose, function, or feature not described in the Documentation or otherwise communicated to you by us. Due to the nature of the Services, we will update the Plugins or APIs and Documentation from time to time, and may add or remove functionality. We will provide you Notice in the event of material changes to, deprecations from, or removal of functionality from the API so that you may continue using the Services with minimal interruption.
We will make publishable and secret Plugin and API keys for live and test Transactions available to you through the Dashboard. Publishable keys identify Transactions with your Users or equipment, and secret keys permit any API call to your Cherry Account. You are responsible for securing your secret keys – do not publish or share them with any unauthorized persons. Failure to secure your secret keys will increase the likelihood of fraud on your Cherry Account and potential losses to you or your Vendors. You should contact us immediately if you become aware of any unauthorized use of your secret key or any other breach of security regarding the Services. We provide more details on proper use of publishable and secret API keys in the Documentation. Information on securing your Cherry Account is available in Section E.
2. Ownership of Cherry IP
As between you and Cherry, Cherry and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the Plugin, API, Services, Dashboard, and Documentation (collectively, “Cherry IP”) or any copies thereof. Cherry IP is protected by copyright, trade secret, patent, and other intellectual property Laws, and all rights in Cherry IP not expressly granted to you in this Agreement are reserved.
You may choose to or we may invite you to submit comments or ideas about improvements to the Service, our API, our platform, or any other component of our products or services (“Ideas”). If you submit an Idea to us, we will presume that your submission was voluntary and delivered to us without any restrictions on our use of the Idea. You also agree that Cherry has no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.
3. License
You are granted a limited, nonexclusive and nontransferable right to electronically access and use the Cherry IP only in the manner described in this Agreement. Cherry does not sell to you, and you do not have the right to sublicense the Cherry IP. We may make updates to the Cherry IP or new Services available to you automatically as electronically published by Cherry, but we may require action on your part before you may use the Cherry IP or new Services (including activation through the Dashboard, or acceptance of new or additional terms). Cherry may revoke or terminate this license at any time, including when you use Cherry IP in a manner prohibited by this Agreement.
You may not: (i) claim or register ownership of Cherry IP on your behalf or on behalf of others; (ii) sublicense any rights in Cherry IP granted by us; (iii) import or export any Cherry IP to a person or country in violation of any country’s export control Laws; (iv) use Cherry IP in a manner that violates this Agreement or Laws; or (v) attempt to do any of the foregoing.
4. Cherry Marks; References to Our Relationship
We may make certain Cherry logos or marks (“Cherry Marks”) available for use by you and other users to allow you to identify Cherry as a service provider. To use Cherry Marks, you must first agree to this Agreement. Cherry may limit or revoke your ability to use Cherry Marks at any time. You may never use any Cherry Marks or Cherry IP consisting of trademarks or service marks without our express permission, or in a manner that may lead people to confuse the origin of your products or services with ours.
During the term of this Agreement, you may publicly identify us as the provider of the Services to you and we may publicly identify you as a Cherry user. If you do not want us to identify you as a user, please contact us. Neither you nor we will imply any untrue sponsorship, endorsement, or affiliation between you and Cherry. Upon termination of your Cherry Account, both you and Cherry will remove any public references to our relationship from your and our respective websites.
5. Content
You may use the Services to upload or publish text, images, and other content (collectively, “Content”) to your Cherry Account and to third-party sites or applications but only if you agree to obtain the appropriate permissions and, if required, licenses to upload or publish any such Content using the Services. You agree to fully reimburse Cherry for all fees, fines, losses, claims, and any other costs we may incur that arise from your publishing illegal Content through the Services, or claims that Content you published infringes the intellectual property, privacy, or other proprietary rights of others.
6. Additional Services:
From time to time we may offer you additional features or services that may be subject to additional or different terms of service. All such additional features and services form part of the Services, and you may not use these additional services unless you agree to the applicable agreement or terms (if any) for those services, in addition to this Agreement.
We may also provide you access to services identified as “beta” or pre-release services. You understand that these services are still in development, may contain bugs or errors, may have incomplete features, may materially change prior to a full commercial launch, or may never be released commercially. We provide beta services AS IS, and without warranty of any kind, and your use of, or reliance on, beta services is at your own risk.
Section C: Payment Gateway Services
1. Payment Gateway Services Overview
Cherry works with various Cherry affiliates and service providers, as well as banks and other financial institutions (“Financial Institutions”) to provide you with access to the Payment Methods and Payment Gateway Services. Where the Payment Gateway Services enable you to submit and receive Payments (as defined below), we may limit or refuse to process Payments for violation of this Agreement, failure to meet internal security requirements, or otherwise in Cherry’s sole discretion.
The following terms used in this Agreement relate to your use of Payment Gateway Services:
“Payment” means an electronic payment via the Service, which may include payment via ACH, Payment Processing, Virtual Cards, Factoring Service or as otherwise set forth herein.
“Dispute” means a dispute concerning a Payment.
“Fine” means any fines, levies, or other charges imposed by us or a Financial Institution or Network, caused by your violation of Applicable Laws or the Financial Institution’s or Network’s rules or requirements or this Agreement.
“Network” means the payment card or ACH networks that are used to facilitate Payments.
“Network Rules” means the guidelines, bylaws, rules, and regulations imposed by the payment card or ACH networks, including, for example, but not limited to, the NACHA operating rules (available here https://www.macha.org), Visa rules (available here https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf), MasterCard rules (available here https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html), each of which are incorporated herein by reference.
“Payment Gateway Services” are Services that you may use to initiate, review, approve and make Payments to your Vendors for Transactions.
2. Registering for Use of Payment Gateway Services
When you register for a Cherry Account, you may be asked for financial information, or information we use to identify you, your Representatives, principals, beneficial owners, and other individuals associated with your Cherry Account. Throughout the term of this Agreement, we may share information about your Cherry Account with Financial Institutions and Networks in order to verify your eligibility to use the Payment Gateway Services, establish any necessary accounts or credit with Financial Institutions, monitor Payments and other activity, and conduct risk management and compliance reviews. We may also share your Data (as that term is defined below) with Financial Institutions and Networks and other Cherry payment service providers for the purpose of facilitating the compliance of Cherry and the Financial Institutions or Networks with Applicable Law and Rules. We will review and may conduct further intermittent reviews of your Cherry Account information to determine whether you are eligible to use the Payment Gateway Services. Cherry’s use of the information you provide to us under this Agreement is described in more detail in Section E.
Cherry is not a bank, money transmitter or other form of money services business and we do not accept deposits, provide loans or extend credit.
3. Specific Payment Methods
a. Automated Clearing House (ACH) / Electronic or Virtual Checks (eCheck or vCheck): Financial Institutions that are integrated with the Services provide ACH and eCheck or vCheck processing services (“ACH Services”) described in this Agreement, including facilitating the initiation of Credit and Debit Entries to make payments to Vendors. The ACH network is controlled and managed by the National Automated Clearinghouse Association (NACHA) and its member organizations. The ACH Services are subject to the requirements of this Agreement and Applicable Law and the NACHA Rules as they may change from time to time, and may be subject to the policies of your and the Vendor’s Financial Institutions. Where submitting Payments over the ACH network, you are required to comply with the NACHA Operating Rules. NACHA may amend the NACHA Operating Rules at any time, and we may amend this Agreement or make changes to the Payment Gateway Services as necessary to comply with the NACHA Operating Rules. You understand and accept your role as the Originator (as defined in the NACHA Operating Rules). You agree to obtain your Vendor’s consent to debit or credit its bank account and initiate a Payment over the ACH network. Such consent must be in a form and manner that complies with the NACHA Operating Rules and the Documentation for ACH Transactions. You also agree to maintain the security and integrity of all information you collect as part of an ACH Transaction. You acknowledge that the ACH Services are provided in connection with Cherry’s relationship with a bank acting as the Originating Depository Financial Institution (the “ODFI”). You acknowledge that the ODFI is a third-party beneficiary of this Agreement, and that the ODFI has all the rights under this Agreement as if it were a party. Without limitation, ACH Services my require you to accept direct terms with our ODFI providing the service.
b. Payment Processing: As a supplier of payment processing services (“Payment Processing”), Account, you hereby appoint us as your agent to receive payments by Vendors on your behalf for each instance, if any, where we are in fact in receipt of such payments. As of when we are in receipt of such a payment for you, you hereby release the Vendor from the liability for such payment as of the moment of our receipt thereof and the Vendor is a third party beneficiary hereunder entitled to enforce such release versus you.
c. Virtual Cards: Financial Institutions integrated with Cherry offer a virtual card payments solution through which payments by Company to Vendors are paid through a Network using virtual credit cards (“Virtual Cards”) issued by Financial Institutions. All Virtual Cards shall remain the property of Cherry or Financial Institutions. Cherry or Financial Institutions may cancel, revoke, repossess or restrict the use of any or all Virtual Cards at any time, and reserve the right to decline to process any individual transactions. If you elect to make a Payment using a Virtual Card, the Financial Institution that is the issuer of the Virtual Card will debit your Company Account in the amount of the requested Payment in order to fund the Virtual Card. Alternatively, at Cherry’s discretion, you may be authorized to fund payments using your linked credit or debit card, in which case Cherry will fund a requested Payment by charging your linked credit or debit card to prefund the disbursement of funds using a Virtual Card. Without limitation, Virtual Cards will require you to accept additional direct terms with the Financial Institution providing that service.
4. Cherry Spend Card Service.
a. At our discretion, we may offer you the ability to participate in the Cherry Spend Card Service, which involves the issuance of a prepaid business spend card (“Card”) to you by Financial Institution and pursuant to this Agreement. As used in this section, the terms “we”, “us” or “our” refers to Cherry and Financial Institution. You agree to appoint a person to manage your participation in the Program (an “Administrator”), including administering the Users approved to use the Cherry Spend Cards. You are responsible for the acts and omissions of your Administrator and Users; ensuring that all Users accept the terms of this Agreement prior to activation and use of a Card; and ensuring that the Administrator and each User comply with the terms of this Agreement. Only Administrators may request additional Cards to be provided to Users or make changes to your participate in the Service. You are solely responsible for any actions Administrators take on your behalf. We may close or suspend your participation in the Cherry Spend Card Service at any time if we believe, in our sole discretion.
b. Cherry will work with Financial Institution to establish a Card account on your behalf (a “Card Account”), which may contain sub-accounts for each Card issued to you and Users. In order to participate in this Service, you agree to prefund the amount of your approved spending limit (“Available Spend”), which may be done through our debiting of your Company Account in order to prefund the amount of the Available Spend. All Cards issued to you or your Users are linked to your Card Account and subject to the Available Spend that has been pre-fund. When a Card is used to make a Payment, we will authorize a Payment to the extent there is Available Spend. The Card Account and related Cards shall be only yours even though some of them may bear User names for convenience.
c. You agree that you and your Users may only use Cards for bona fide business purchases and for valid and lawful purposes in compliance with Applicable Law and Network Rules. Cards may not be used for personal, family or household purposes. All Cards remain the property of Financial Institution and must be returned upon request. You may not make any Payment that would cause you to exceed the Available Spend. You agree to maintain sufficient Available Spend to fund all Payments, fees, penalties, and other amounts incurred through use of your Cards. We may increase or decrease your Available Spend at any time, in our sole discretion. We may set or adjust spending limits on Cards at any time, in our sole discretion. We reserve the right to decline to authorize any Payment that would cause you to exceed the Available Spend or for any other reason, in our sole discretion. We are not responsible for losses resulting from declined or reversed Payments. If you have a Dispute with the product or service that is the subject of a Payment, you should contact the merchant or seller to resolve the Dispute. If a Charge is not appropriately addressed with the merchant or seller, then you may submit a chargeback of the Payment by contacting use. You understand that we are subject to the Network Rules regarding chargebacks and may not be able to successfully chargeback the Payment.
d. You are responsible for authorized uses of the Cards and all authorized Payments using the Cards. Each Card may only be used by the User to whom it is issued or who is authorized to use it, and you may not transfer it to any other person or entity. You must notify us immediately if you believe someone is using a Card without authorization. If you notice possible unauthorized use of any Card, you must contact us immediately. If you wish to remove any Users ability to use any Card, or deactivate a particular Card, you must notify us in writing. This notice will not be effective until we receive and have had a reasonable opportunity to act on it. You agree to assist us in our investigation and in determining the facts, circumstances, and other pertinent information relating to any loss, theft, or suspected unauthorized use of any Card and to comply with such procedures as we may require in connection with our investigation, including assisting in the prosecution of any unauthorized use. You acknowledge and agree that unless you have provided us notice of unauthorized use in the manner set forth above and a reasonable opportunity to act on such notice, we shall be entitled to treat all use of the Cards as authorized. If fewer than 10 Cards have been issued to you, your liability for unauthorized use of a Card will not exceed $50.00. If 10 or more Cards are issued for you, there is no limit to your liability for unauthorized use that occurs before you notify us as provided herein. Your liability for unauthorized use may be reduced to the extent of any applicable Network liability program benefits available for you.
5. Processing Transactions; Disputes, Refunds, Reversals
Payments may only be for Vendors located within the United States and for services provided in the United States, and only by authorized employees and other users of Company (“Users”). Company agrees not to make or request Payments to any types of businesses as may be prohibited by Cherry from time to time and no Payments may be made in violation of Applicable Law or Network Rules. Cherry may modify the manner in which the Payment Gateway Services are provided and the features thereof in its discretion, and such Payment Gateway Services may be subject from time to time to additional terms and conditions that will be provided by Cherry. All Services subject to availability and Cherry’s approval. Company shall prepare each Payment in accordance with any applicable instructions provided by Cherry.
Company acknowledges and agrees that the Payment Gateway Services operate on a “good funds” model in which Cherry or Financial Institution will debit the Company Account to prefund all Payments; no credit shall be advanced for any Payments. Company agrees to maintain sufficient funds at all times in the Company Account to cover Payments and any fees and other charges under this Agreement, or else the Payment Gateway Services may be suspended or terminated. If Company does not maintain sufficient funds, Company shall have not obligation to facilitate a requested Payment.
You agree that Cherry may apply a cap or limit on Payments, including on single Payments, daily Payments, and Monthly Payments. These limits may be changed by Cherry from time-to-time, upon notice to Company. If Company exceeds the established limits, Cherry may temporarily suspend Payment Gateway Services and Company may be subject to any applicable fees. Company shall be solely responsible for ensuring the validity, accuracy and completeness of all information, data, files and instructions provided or transmitted to Cherry, Financial Institutions, or any of their affiliates or contractors that assist in providing any services. Cherry shall be entitled to rely upon any information provided by Company in connection with Cherry’s provision of the Payment Gateway Services. Cherry shall not be required to act on Payment instructions provided by Company if Cherry reasonably doubts an instruction’s contents or Company’s compliance with Applicable Law, the Network Rules, and this Agreement. Before Company initiates any Payment, Company shall ensure that it has obtained any required authorizations under the Network Rules and Applicable Law. Company represents and warrants that for all Payments Company has obtained proper authorization.
Except where Cherry and a Vendor have otherwise agreed, you maintain the direct relationship with your Vendors and are responsible for: (i) acquiring appropriate consent to submit Payments through the Payment Gateway Services on their behalf; (ii) providing confirmation or receipts of submission to Vendors for each Payment; (iii) verifying Vendors’ identities; and (iv) determining a Vendor’s eligibility and authority to complete Transactions. However, even authorized Transactions may be subject to a Dispute. Cherry is not responsible for or liable to you for authorized and completed Payments that are later the subject of a Dispute, refund, or reversal, are submitted without authorization or in error, or violate any Applicable Laws.
You are immediately responsible and liable to us for all Disputes, refunds, reversals, returns, or Fines regardless of the reason or timing. Any disputes or unauthorized Payments may result in Company becoming unable to make or accept Payments. Company is solely responsible for settling any disputes between Company and its Vendors. Company agrees that Cherry will have no responsibility in resolving or settling such disputes. Cherry will not be liable for any delays in receipt of funds or errors in Payments caused Company or by third parties. Any errors, returns, losses, or costs incurred by Company, Cherry, Financial Institutions, or any third party resulting from incorrect information or instructions will be the sole responsibility of Company. In the event any Payments made using the Payment Services incur any fines, fees, interest, charges or other costs or fees, Company shall be solely liable for such fines, fees, interest, charges or other costs or fees. Company shall have no right to cancel or amend any Payment after its receipt by Cherry or Financial Institutions. Company acknowledges that Cherry may establish return rate thresholds, which may be changed from time to time in Cherry’s sole discretion. Cherry may immediately suspend or terminate the Payment Gateway Services if returns exceed the established threshold.
Please keep in mind that, as explained in Section E.3, you are liable for all losses you incur when lost or stolen payment credentials or accounts are used to purchase products or services from you. Cherry is not responsible for incorrect bank account and other information submitted by Vendor. Cherry does not and will not insure you against losses caused by fraud under any circumstances. For example, if someone pretends to be a legitimate Vendor but is a fraudster, you will be responsible for any resulting costs, including Disputes, even if you do not recover the fraudulently purchased product.
A reversal for a Payment may be issued only prior to submission of a Payment to a Financial Institution if the Payment is made without the account owner’s authorization or in connection with a Restricted Business, violates the applicable rules, or for other applicable reasons. If a reversal is issued, we will provide you Notice and a description of the cause of the reversal.
6. Responsibilities and Disclosures to Your Vendors
It is very important to us that your Vendors understand the purpose, amount, and conditions of Payments you submit to us. When using the Payment Gateway Services you agree to: (i) accurately communicate, and not misrepresent, the nature of the Transaction, and the amount of the Payment in the appropriate currency prior to initiating it; (ii) provide a receipt that accurately describes each Transaction to Vendors; (iii) provide Vendors a meaningful way to contact you in the event that the product or service is not provided as described; (iv) not use Services in a manner that is unfair or deceptive, immoral, exposes Vendors to unreasonable risks, or does not disclose material terms of a purchase in advance; and (v) inform Vendors that Cherry and its affiliates process Transactions (including payment Transactions) for you. You also agree to maintain and make available to your Vendors a fair and neutral return, refund, cancellation, or adjustment policy, and clearly explain the process by which Vendors can receive a Refund.
If you engage in Transactions or payments with Vendors who are individuals (i.e. consumers), you specifically agree to provide consumers disclosures required by Applicable Law, and to not engage in unfair, deceptive, or abusive acts or practices (“UDAAP”).
7. Payment Terms and Financial Services Terms
Your use of the Payment Gateway Services may be subject to additional terms that apply between you and one or more of Cherry, a Cherry affiliate, and a Financial Institution. When these additional terms relate to a specific Payment Method they are “Payment Terms,” and will be disclosed to your prior to your use of the Payment Method. We may add or remove Financial Institutions at any time. The Payment Terms may also be amended from time to time. Your use of the Payment Gateway Services or any Payment Method constitutes your consent and agreement to the Payment Terms, and your continuing use of the Payment Gateway Services or any Payment Method constitutes your consent and agreement to any additions, removals or amendments thereto.
8. Reconciliation and Error Notification
The Dashboard contains details of Payments, Payment history, and other activity on your Cherry Account. Except as required by Applicable Law, you are solely responsible for reconciling the information in the Dashboard generated by your use of Payment Gateway Services with your records of Vendor Transactions, and for identifying any errors. You agree to review your Cherry Account and immediately notify us of any errors. We will investigate any reported errors, including any errors made by Cherry or a Financial Institution, and, when appropriate, attempt to rectify them by crediting or debiting the relevant Account. However, you should be aware that your ability to recover funds you have lost due to an error may be very limited or even impossible, particularly if we did not cause the error, or if funds are no longer available. For Transaction errors, we will work with you and our Financial Institutions to correct a Transaction error in accordance with the applicable Payment Method Rules. If you fail to communicate an error to us for our review without undue delay and, in any event, within 30 days after it appears on your Dashboard, you waive your right to make any claim against us or our Financial Institutions for any amounts associated with the error.
Section D: Factoring Service
This section applies to your use of our Service of factoring certain of your claims
(the “Factoring Service”). In this section, we’ll refer to you as the “Merchant”.
1. Claim
Merchant states that it has sold (the “Sale”) products or services (“Goods”) to a client / Vendor of Merchant (such client, the “Customer”) identified to Cherry through the Cherry Account. Merchant states that upon the Sale, Merchant has issued, through the Cherry Account or otherwise, an invoice for the Sale that represents a claim of the Merchant versus the Customer (the “Claim”) in the amount of the Sale price.
2 Invoice Delivery
If Merchant has not already delivered the invoice representing the Claim to the Customer then Merchant hereby instructs Cherry to use information related to the Sale and the Claim from Merchant and from its Customer, obtained via the Cherry Account, to create and deliver an invoice for each Sale to the Customer failing which Merchant shall do the same. Merchant appoints Cherry as its agent to present such invoices to its Customers.
3 Purchase and Sale of Claim
In order to assist Cherry in supplying the Factoring Services, Merchant will provide such information concerning the Customer, Sale, Goods and Claim as Cherry may request. Cherry will evaluate such information an then determine whether it wishes to purchase aby given Claim.
Following Cherry issuing invoices for Sales available to its Customers, as and when requested by Merchant through the Cherry Account, Merchant hereby sells and assigns to Cherry the related Claims and Cherry hereby purchases and takes assignment of the Claim (each, an “Assignment of Claim”) that is accepted by Cherry. Cherry may decline to purchase any or all Claims as per its preferences indicated in the Cherry Account. Except as set out herein, each Assignment of Claim is without recourse versus the Merchant and Merchant shall have no liability to Cherry in the event that the Customer does not pay on the Claim. Merchant shall not allow any Claim to be subject to an Assignment of Claim that is not concerning a good faith sale of Goods by the Merchant to the Customer identified in the Claim and related invoice.
In consideration of the Assignment of Claim from Merchant to Cherry, Cherry shall pay Merchant the purchase price indicated in the Cherry Account (the “Claim Purchase Price”), which is the amount of the Claim less a fee charged by Cherry to purchase the Claim, such fee being a Fee.
Merchant is selling the Claim to Cherry at a discount, not borrowing money from Cherry, therefore there is no interest rate or payment schedule and no time period during which the Claim must be paid to Cherry.
Cherry shall pay the Claim Purchase Price to the Merchant within three (3) business days of acceptance of the Transaction by Merchant through the Cherry Account. The Claim Purchase Price shall be paid to Merchant by settlement of the amount thereof to the Merchant Cherry Account.
Cherry may rescind the Assignment of any Claim, and all other previously assigned Claims, and Merchant shall reimburse the Claim Purchase Prices for each such Claims in the event: (i) Merchant has made a fraudulent Sale, defaulted on the terms of Sale or intentionally provided false or misleading information to Cherry in respect of the Customer, any individual Claim, any Sale or the Assignment of any Claim; (ii) of a commercial dispute between Merchant and Customer over the goods or services that are the subject of the Claim; or (iii) defect in or non-delivery of Goods, fraud or breach hereof on the part of the Merchant or a third party, each as determined by Cherry.
4. Notification
If directed to do so by Cherry, invoices related to Claims shall include notice of the Assignment of Claim to the Customer.
5. Recourse
If Customer does not pay the Claim in full to Cherry within the delay indicated at the time of the Assignment of Claim in the Cherry Account (the “Claim Maturity Date”), then at the discretion of Cherry as indicated in the Cherry Account, Cherry shall sell to the Merchant shall repurchase the Claim from Cherry at the price indicated in the Cherry Account.
Cherry may set-off any amount owing by Merchant to Cherry from amounts otherwise payable to Merchant hereunder.
6. Limitations.
Following an Assignment of Claim, Merchant shall not dispose of any of its rights in the Claim other than to Cherry hereunder.
7. Representations and Warranties.
Merchant states and covenants the following as of the date hereof and during the term of this Agreement:
7.1. Accurate Business Information. All information (financial and other) provided by or on behalf of the Merchant to Cherry in connection with the execution of or pursuant to this Agreement is true, accurate and complete in all respects. Merchant shall furnish Cherry such information as Cherry may request from time to time.
7.2. Reliance on Information. Merchant acknowledges and agrees that all information provided by or on behalf of Merchant has been relied upon by Cherry in connection with its decision to purchase the Claim from Merchant.
7.3. Compliance. Merchant is in compliance with any and all applicable federal, state and local laws and regulations and rules. Merchant possesses and is in compliance with all permits, licenses, approvals, consents, registrations and other authorizations necessary to own, operate and lease its properties and to conduct the business in which it is presently engaged.
7.4. Authorization. Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement and the Processing Agreement, all of which have been duly authorized by all necessary and proper actions.
7.5. Merchant not Indebted to Cherry. Merchant is not a debtor of Cherry as of the date of this Agreement.
7.6. Good Faith Claim. All amounts received by Cherry attributable to the Claim purchased by Cherry hereunder shall arise from bona fide sales by Merchant of its goods and services to a client of Merchant.
7.7. Business Purpose. Merchant is a valid business in good standing under the laws of each jurisdiction in which it is organized or operates, and Merchant is entering into this Agreement solely for business purposes and not as a consumer for personal, family or household purposes. Merchant shall not use the Claim Purchase Price for personal expenses and shall instead use the Claim Purchase Price for business purposes only.
Section E: Data Usage, Privacy, and Security
1. Data Usage Overview
Protecting, securing, and maintaining the information processed and handled through the Services is one of our top priorities, and it should be yours too. This section describes our respective obligations when handling and storing information connected with the Services. The following terms used in this section relate to data provided to Cherry by you or your Vendors, or received or accessed by you through your use of the Services:
“Payment Account Details” means the Payment account details for a Vendor, and includes, payor and payee Vendors’ email addresses, account numbers or other identifying details.
“Payment Data” means Payment Account Details, information communicated to or by a Financial Institution, including financial information specifically regulated by Applicable Law and Payment Method Rules, and any other information received or used in connection with Payment Gateway Services and other Transactions.
“Personal Data” means information that identifies a specific living person (not a company, legal entity, or machine) and is transmitted to or accessible through the Services.
“Cherry Data” means details of Payments, Plugins or API transactions over the Cherry infrastructure, information used for fraud detection and analysis, aggregated or anonymized information generated from Data, and any other information received from Vendors or others, or interconnected devices, or created by or originating from Cherry or the Services.
“User Data” means information that describes you, your business and its operations, your products or services, and orders or transactions involving Vendors.
The term “Data” used without a modifier means Personal Data, User Data, Payment Data, and Cherry Data.
Cherry processes, analyzes, and manages Data to: (a) provide Services to you, other Cherry users, and Vendors; (b) mitigate fraud, financial loss, or other harm to users, Vendors and Cherry; (c) analyze, develop and improve our products, systems, and tools; and (d) offer you Additional Services and customized solutions. Cherry provides Data to third-party service providers, including Financial Institutions, Payment Method Acquirers, and their respective affiliates, as well as to Cherry’s affiliates, to allow us to provide Services to you and other users. We do not provide Personal Data to unaffiliated parties for marketing their products to you. You understand and consent to Cherry’s use of Data for the purposes and in a manner consistent with this Section E. Cherry may collect and utilized any information accessible to it from Vendor or relating to Vendor’s account for the purpose of authenticating the legitimacy of Payments, to improve and better the Services and/or offer additional services to you.
2. Data Protection and Privacy
a. Confidentiality: Cherry will only use User Data as permitted by this Agreement, by other agreements between you and us, or as otherwise directed or authorized by you. You will protect all confidential Data disclosed to you by Cherry and use such Data only in connection with the Services as permitted by this Agreement. You may not disclose any proprietary Cherry technology or methods without Cherry’s written consent. Neither party may use any Personal Data to market to Vendors unless it has received the express consent from a specific Vendor to do so. You may not disclose Payment Data to others except in connection with processing Transactions requested by Vendors and consistent with Applicable Law and Payment Method Rules.
b. Privacy: Protection of Personal Data is very important to us. Our Privacy Policy explains how and for what purposes we collect, use, retain, disclose, and safeguard the Personal Data you provide to us. You agree to the terms of our Privacy Policy, which we may update from time to time.
You affirm that you are now and will continue to be compliant with all Applicable Law governing the privacy, protection, and your use of Data that you provide to us or access through your use of the Services. You also affirm that you have obtained all necessary rights and consents under Applicable Law to disclose to Cherry – or allow Cherry to collect, use, retain, and disclose – any Personal Data that you provide to us or authorize us to collect, including Data that we may collect directly from interconnected devices or Vendors using cookies or other similar means. As may be required by Applicable Law and in connection with this Agreement, you are solely responsible for disclosing to Vendors that Cherry processes Transactions (including Payments) for you and may receive Personal Data from you. Additionally, where required by Applicable Law or Rules, we may delete or disconnect a Vendor’s Personal Data from your Cherry Account.
If we become aware of an unauthorized acquisition, disclosure or loss of Vendor Personal Data on our systems, we will notify you as required under Applicable Law.
You authorize your wireless operator to disclose your mobile number, name, address, email, network status, customer type, customer role, billing type, mobile device identifiers (IMSI and IMEI) and other subscriber details, if available, to Cherry, service providers and Financial Institutions for the duration of the business relationship, solely for identity verification and fraud avoidance. See our Privacy Policy for how we treat your data.
3. Security and Fraud Controls
a. Cherry’s Security: Cherry is responsible for protecting the security of Data in our possession. We will maintain commercially reasonable administrative, technical, and physical procedures to protect User Data and Personal Data stored in our servers from unauthorized access, modification, or breach or from accidental loss, and we will comply with Applicable Law and Payment Method Rules when we handle User and Personal Data. However, no security system is impenetrable and we cannot guarantee that unauthorized parties will never be able to defeat our security measures or misuse any Data in our possession. You provide User Data and Personal Data to Cherry with the understanding that any security measures we provide may not be appropriate or adequate for your business, and you agree to implement Security Controls (as defined below) and any additional controls that meet your specific requirements. In our sole discretion, we may take any action, including suspension of your Cherry Account, to maintain the integrity and security of the Services or Data, or to prevent harm to you, us, Vendors, or others. You waive any right to make a claim against us for losses you incur that may result from such actions.
b. Your Security: You are solely responsible for the security of any Data on your website, on your servers, in your possession, or that you are otherwise authorized to access or handle. You will comply with Applicable Law and Payment Method Rules when handling or maintaining User Data and Personal Data, and will provide evidence of your compliance to us upon our request. If you do not provide evidence of such compliance to our satisfaction, we may suspend your Cherry Account or terminate this Agreement.
c. Security Controls: You are responsible for assessing the security requirements of your business, and selecting and implementing security procedures and controls (“Security Controls”) appropriate to mitigate your exposure to security incidents. No User or Vendor may share its unique Cherry password or other private login information with any other person or entity, including any other User or Vendor. We may provide Security Controls as part of the Services, or suggest that you implement specific Security Controls. However, your responsibility for securing your business is not diminished by any Security Controls that we provide or suggest, and if you believe that the Security Controls we provide are insufficient, then you must separately implement additional controls that meet your requirements. You may review some of the details of our Security Controls on our website.
d. Fraud Risk: While we may provide or suggest Security Controls, we cannot guarantee that you or Vendors will never become victims of fraud. Any Security Controls we provide or suggest may include processes or applications developed by Cherry, its affiliates, or other companies. You agree to review all the Security Controls we suggest and choose those that are appropriate for your business to protect against unauthorized Transactions and, if appropriate for your business, independently implement other security procedures and controls not provided by us. If you disable or fail to properly use Security Controls, you will increase the likelihood of unauthorized Transactions, Disputes, fraud, losses, and other similar occurrences. If you disable or fail to properly use Security Controls, you are responsible and liable for any resulting losses you may incur. Keep in mind that you are solely responsible for losses you incur from the use of lost or stolen payment credentials or accounts by fraudsters who engage in fraudulent Transactions with you, and your failure to implement Security Controls will only increase the risk of fraud. We may assist you with recovering lost funds, but you are solely responsible for losses due to lost or stolen credentials or accounts, compromise of your username or password, changes to your Company Account, any other unauthorized use or modification of your Cherry Account, and failure to implement and use the Security Controls. Cherry is not liable or responsible to you, and you waive any right to bring a claim against us, for any losses that result from the use of lost or stolen credentials or unauthorized use or modification of your Cherry Account, unless such losses result from Cherry’s willfully or intentionally wrongful actions. Further, you will fully reimburse us for any losses we incur that result from the use of lost or stolen credentials or accounts.
We may also provide you with Data regarding the possibility or likelihood that a Transaction may be fraudulent. We may incorporate any subsequent action or inaction by you into our fraud model, for the purpose of identifying future potential fraud. You understand that we provide this Data to you for your consideration, but that you are ultimately responsible for any actions you choose to take or not take in relation to such Data.
5. Provision of Payment Account Details upon Termination
For 30 days after termination of your Cherry Account, you may request in writing that we provide to an alternative payment services provider the Payment Account Details that you are entitled to receive regarding Transactions between you and your Vendors. Such information will be provided if still available. We may require you to provide evidence that the alternative payment services provider has appropriate systems and controls as a precondition to the provision of any Payment Account Details.
Section F: Additional Legal Terms
1. Right to Amend
We have the right to change or add to the terms of this Agreement at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our website or any other website we maintain or own. We will provide you with Notice of any changes through the Dashboard, via email, or through other reasonable means. If you are an existing Cherry user, the changes will come into effect 10 days after we post the changes to our website, and your use of the Services, API, or Data more than 10 days after we publish any such changes on our website, constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our website at any time. You can find out when this Agreement was last changed by checking the “Last Updated” date at the top of the Agreement.
2. Assignment
You may not assign this Agreement, any rights or licenses granted in this Agreement, or operation of your Cherry Account to others without our prior written consent. If you wish to make such an assignment, please contact us. If we consent to the assignment, the assignee must agree to assume all of your rights and obligations owed by you related to the assignment, and must agree to comply with the terms of this Agreement. Cherry may assign this Agreement without your consent or any other restriction. If we make an assignment, we will provide reasonable Notice to you.
3. Right to Audit
If we believe that a security breach, leak, loss, or compromise of Data has occurred on your account, systems, website, user systems, plugins, API’s or app affecting your compliance with this Agreement, we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities, and you must fully cooperate with any requests for information or assistance that the auditor makes to you as part of the security audit. The auditor will issue a report to us, which we may share with our Financial Institutions or Networks.
4. No Agency; Third-Party Services
Except as expressly stated in this Agreement, nothing in this Agreement serves to establish a partnership, joint venture, or other agency relationship between you and us, or with any Financial Institution. Each party to this Agreement, and each Financial Institution, is an independent contractor. Unless a Financial Institution expressly agrees, neither you nor we have the ability to bind a Financial Institution to any contract or obligation, and neither party will represent that you or we have such an ability.
We may reference or provide access to third-party services, products, and promotions that utilize, integrate, or provide ancillary services to the Services (“Third-Party Services”). These Third-Party Services are provided for your convenience only and do not constitute our approval, endorsement, or recommendation of any such Third-Party Services for you. You access and use any Third-Party Service based on your own evaluation and at your own risk. You understand that your use of any Third-Party Service is not governed by this Agreement. If you decide to use a Third-Party Service, you will be responsible for reviewing, understanding and accepting the terms and conditions associated with its use. We expressly disclaim all responsibility and liability for your use of any Third-Party Service. Please also remember that when you use a Third-Party Service, our Privacy Policy is no longer in effect. Your use of a Third-Party Service, including those that have a link on our website, is subject to that Third-Party Service’s own terms of use and privacy policies.
5. Force Majeure
Neither party will be liable for any delays in processing or other nonperformance caused by telecommunications, utility, or equipment failures; labor strife, riots, pandemic, war, or terrorist attacks; nonperformance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse your liabilities or your obligation to pay Fees, Fines, Disputes, refunds, reversals, or returns under this Agreement.
6. Your Liability For Third-Party Claims Against Us
Without limiting, and in addition to, any other obligation that you may owe under this Agreement, you are at all times responsible for the acts and omissions of your employees, contractors and agents, to the extent such persons are acting within the scope of their relationship with you.
You agree to defend and indemnify Cherry, our affiliates, and our and our affiliates’ employees, agents, and service providers (each a “Cherry Entity”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against a Cherry Entity, and you agree to fully reimburse the Cherry Entities for any Claims that results from: (i) your breach of any provision of this Agreement; (ii) any Fees, Fines, Disputes, refunds, reversals, returns, or any other liability the Cherry Entities incur that results from your use of the Payment Gateway Services; (iii) negligent or willful misconduct of your employees, contractors, or agents; or (iv) contractual or other relationships between you and Vendors.
Important Note for Sole Proprietors: If you are using Services as a sole proprietor, please keep in mind that the Applicable Law and the terms of this Agreement consider you and your business to be legally one and the same. You are personally responsible and liable for your use of the Services, payment of Fees, refunds, reversals, Fines, losses based on Disputes or fraud, or for any other amounts you owe under this Agreement for your failure to use Security Controls, and for all other obligations to us and to your Vendors. You risk personal financial loss if you fail to pay any amounts owed. Please take the time to read our Documentation and take any measures appropriate to protect against such losses.
7. Representations and Warranties
By accepting the terms of this Agreement, you represent and warrant that: (a) you are eligible to register and use the Services and have the authority to execute and perform the obligations required by this Agreement; (b) any information you provide us about your business, products, or services is accurate and complete; (c) any Payment represents a Transaction for permitted products, services, or donations, any information provided accurately describes the Transaction, and no Transaction is for household, consumer, or personal purposes; (d) you will fulfill all of your obligations to Vendors and will resolve all Disputes with them; (e) you will comply with all Applicable Law applicable to your business and use of the Services; and (f) your employees, contractors and agents will at all times act consistently with the terms of this Agreement.
8. No Warranties
WE PROVIDE THE SERVICES AND CHERRY IP “AS IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY OTHER TYPE OF WARRANTY OR GUARANTEE. NO DATA, DOCUMENTATION OR ANY OTHER INFORMATION PROVIDED BY CHERRY OR OBTAINED BY YOU FROM OR THROUGH THE SERVICES – WHETHER FROM CHERRY OR ANOTHER CHERRY ENTITY, AND WHETHER ORAL OR WRITTEN – CREATES OR IMPLIES ANY WARRANTY FROM A CHERRY ENTITY TO YOU.
YOU AFFIRM THAT NO CHERRY ENTITY CONTROLS THE PRODUCTS OR SERVICES THAT YOU OFFER OR SELL OR THAT YOUR VENDORS PURCHASE USING THE PAYMENT GATEWAY SERVICES. YOU UNDERSTAND THAT WE CANNOT GUARANTEE AND WE DISCLAIM ANY KNOWLEDGE THAT YOUR VENDORS POSSESS THE AUTHORITY TO MAKE, OR WILL COMPLETE, ANY TRANSACTION.
THE CHERRY ENTITIES DISCLAIM ANY KNOWLEDGE OF, AND DO NOT GUARANTEE: (a) THE ACCURACY, RELIABILITY, OR CORRECTNESS OF ANY DATA PROVIDED THROUGH THE SERVICES; (b) THAT THE SERVICES WILL MEET YOUR SPECIFIC BUSINESS NEEDS OR REQUIREMENTS; (c) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (d) THAT CHERRY WILL CORRECT ANY DEFECTS OR ERRORS IN THE SERVICE, API, DOCUMENTATION, OR DATA; OR (e) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. USE OF DATA YOU ACCESS OR DOWNLOAD THROUGH THE SERVICES IS DONE AT YOUR OWN RISK – YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM SUCH ACCESS OR DOWNLOAD. YOU UNDERSTAND THAT THE CHERRY ENTITIES MAKE NO GUARANTEES TO YOU REGARDING TRANSACTION PROCESSING TIMES OR PAYOUT SCHEDULES.
NOTHING IN THIS AGREEMENT OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER APPLICABLE LAW WHERE TO DO SO WOULD: (A) CONTRAVENE THAT LAW; OR (B) CAUSE ANY TERM OF THIS AGREEMENT TO BE VOID.
9. Limitation of Liability
Under no circumstances will any Cherry Entity be responsible or liable to you for any indirect, punitive, incidental, special, consequential, or exemplary damages resulting from your use or inability to use the Services or for the unavailability of the Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to this Agreement or your use of the Services, even if such damages are foreseeable, and whether or not you or the Cherry Entities have been advised of the possibility of such damages. The Cherry Entities are not liable, and deny responsibility for, any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorized access or use of the Services, your Cherry Account, or Data, or your failure to use or implement anti-fraud measures, Security Controls, or any other data security measure. The Cherry Entities further deny responsibility for all liability and damages to you or others caused by (a) your access or use of the Services inconsistent with the Documentation; (b) any unauthorized access of servers, infrastructure, or Data used in connection with the Services; (c) interruptions to or cessation of the Services; (d) any bugs, viruses, or other harmful code that may be transmitted to or through the Services; (e) any errors, inaccuracies, omissions, or losses in or to any Data provided to us; (f) third-party content provided by you; or (g) the defamatory, offensive, or illegal conduct of others.
You agree to limit any additional liability not disclaimed or denied by the Cherry Entities under this Agreement to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the amount of Fees paid by you to Cherry during the three-month period immediately preceding the event that gave rise to your claim for damages.
These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.
We provide the Services from facilities in the United States. We do not claim, and we cannot guarantee that Services we provide from the United States are or will be appropriate or available for any other location or jurisdiction, comply with the Applicable Law of any other location or jurisdiction, or comply with Applicable Law governing export, import, or foreign use.
10. Responding to Legal Process
Cherry may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, or other legal order (“Legal Process”) that we believe to be valid. We or any Financial Institution may deliver or hold any funds or, subject to the terms of our Privacy Policy, any Data as required under such Legal Process, even if you are receiving funds or Data on behalf of other parties. Where permitted by Applicable Law, we will make reasonable efforts to provide you Notice of such Legal Process by sending a copy to the email address we have on file for you. Cherry is not responsible for any losses, whether direct or indirect, that you may incur as a result of our response or compliance with a Legal Process. You will indemnify Cherry Entities for any losses, whether direct or indirect, that they may incur as a result of their response or compliance with a Legal Process.
11. Dispute Resolution; Agreement to Arbitrate
a. Binding Arbitration: In the event that there is a dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from this Agreement, but specifically excluding any dispute principally related to either party’s intellectual property (which dispute will be resolved in litigation before the United States District Court for the Eastern District of New York), will be determined by arbitration in Kings County, New York, before a single arbitrator. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs), and in other cases in which the parties agree, Section F-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply. The arbitrator will apply the substantive Law of the State of New York, exclusive of its conflict or choice of law rules. If the American Arbitration Association is no longer in business, or refuses or declines to administer any dispute between the parties brought before it, either party may petition the United States District Court for the Eastern District of New York to appoint the arbitrator. Nothing in this paragraph will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this paragraph referencing applicable substantive Law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to the terms of this Agreement.
Either party may commence arbitration by providing to the American Arbitration Association and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.
b. Service of Process: Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or (for individuals or sole proprietors) primary address. Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by Applicable Law.
c. Class Waiver: To the fullest extent permitted by Applicable Law, each of the parties agrees that any dispute arising out of or in connection with this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.
d. Provision of an Award: Subject to the limitations of liability identified in this Agreement, the appointed arbitrators may award monetary damages and any other remedies allowed by the Laws of the State of New York. In making a determination, the arbitrator will not have the authority to modify any term or provision of this Agreement. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by a state or federal court located in Brooklyn, New York. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.
e. Fees: Each party will advance one-half of the fees and expenses of the arbitrators, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to this Agreement, the arbitrators will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.
f. Confidentiality: The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by Applicable Law. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by Applicable Law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.
g. If any provision of this Agreement to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by Applicable Law and all the other provisions will remain valid and enforceable.
12. Entire Agreement
This Agreement and all policies and procedures that are incorporated by reference constitute the entire agreement between you and Cherry for provision and use of the Services. Except where expressly stated otherwise in a writing executed between you and Cherry, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services. This Agreement sets forth your exclusive remedies with respect to the Services. If any provision or portion of this Agreement is held to be invalid or unenforceable under Applicable Law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.
13. Cumulative Rights, Construction, Waiver
The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement, along with all other rights and remedies available to it at Applicable Law, in equity or under the Payment Method Rules. No provision of this Agreement will be construed against any party on the basis of that party being the drafter. Unless expressly stated otherwise, the use of the term “including” or “such as” is not to be interpreted as limiting the generality of the text preceding the term. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.
14. Survival
All provisions of this Agreement that give rise to a party’s ongoing obligation will survive termination of this Agreement, including Sections A.3 (“Your Relationship with Your Vendors”), A.6 (“Taxes and Other Expenses”), A.7 (“Service Requirements, Limitations and Restrictions”), A.8 (“Suspicion of Unauthorized or Illegal Use”), A.9 (“Disclosures and Notices; Electronic Signature Consent”), A.10.b (“Effects of Termination”), B.2 (“Ownership of Cherry IP”), C.6 (“Specific Payment Methods”), C.10 (“Reconciliation and Error Notification”), C.11 (“Dormant Accounts”), E.3 (“Security and Fraud Controls”), E.5 (“Provision of Payment Account Details upon Termination”), F.4 (“No Agency; Third-Party Services”), F.5 (“Force Majeure”), F.6 (“Your Liability for Third-Party Claims Against Us”), F.7 (“Representations and Warranties”), F.8 (“No Warranties”), F.9 (“Limitation of Liability”), F.10 (“Responding to Legal Process”), F.11 (“Dispute Resolution; Agreement to Arbitrate”), F.12 (“Entire Agreement”), F.13 (“Cumulative Rights, Construction, Waiver”) and F.14 (“Survival”); and any related terms in the Agreement.
