KigoPay Payment Services Agreement for US Customers
Last updated: December 21, 2017
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER.
This KigoPay Payment Services Agreement for U.S. Customers (the “KigoPay Domestic Terms”), is entered into by and among Kigo, Inc., a Delaware corporation (“Payment Provider”), YapStone, Inc., a Delaware corporation (“Processor”) and the entity or individual who enters into these KigoPay Domestic Terms (“Kigo Marketplace Customers” or “You”). These KigoPay Domestic Terms are incorporated by reference into the Kigo Terms of Service (www.kigo.net/terms) (“Kigo Terms”) and set out the terms and conditions under which You may utilize the KigoPay Payment Services (“KigoPay”).
If You are using KigoPay on behalf of a business, You represent and agree that the business accepts these terms. These KigoPay Domestic Terms govern Your use of KigoPay within the United States of America. Unless otherwise defined herein, capitalized terms will have the meaning provided in the Kigo Terms. You should carefully read through these terms as they constitute a legally binding agreement between You, Kigo and YapStone.
We have the right to modify the terms herein and/or any feature or aspect of KigoPay (including, without limitation, the right to change, suspend, discontinue, impose limits on features, or restrict access to any of KigoPay or this website) without prior notice to You. If we determine, in our sole discretion, that such modification may materially adversely affect Your use of KigoPay, then Kigo or YapStone will provide You notice (at its option) by email or by posting such notice on this website. Any use of KigoPay after our publication of any such modification shall constitute Your acceptance of these KigoPay Domestic Terms as modified.
1. KIGOPAY SERVICES.
KigoPay provides payments services to Kigo Marketplace Customers, including payment collection and processing services, in connection with the Kigo Marketplace Bundle. KigoPay is powered by YapStone, a third-party provider of online payments services, and enables you to accept online electronic payments from Guests and Payors.
2. YOUR RELATIONSHIP WITH YAPSTONE.
By using KigoPay, You appoint YapStone and its Acquirer (defined below) as Your agents for the limited purpose of receiving, collecting, facilitating, transmitting, and/or processing Payments (defined below) on Your behalf from Payors, and transmitting such funds to You. You acknowledge and agree that:
Payment made by a Payor through KigoPay shall be considered the same as a Payment made directly to You, and You will provide the paid-for services to the applicable Guest in the agreed upon manner as if You had received such Payment directly from the Guest. This applies even if YapStone has failed to remit such Payment to You, and You shall have no recourse against the Guest arising out of such failure by YapStone. Your sole recourse, as set forth in these KigoPay Domestic Terms, will be against YapStone.
When you are contractually authorized to accept Payments on behalf of a third party (such as a property owner for which you provide property management services) (the “Payee”), You agree that Payment made by a Payor through KigoPay shall be considered the same as a Payment made directly to such Payee, and that the Payee will provide the paid-for services to the applicable Guest in the agreed upon manner as if the Payee had received such Payment directly from the Guest. This applies even if YapStone has failed to remit such Payment to You (on behalf of Payee), and the Payee shall have no recourse against the Guest or Payor arising out of such failure by YapStone. The Payee’s sole recourse, as set forth in these KigoPay Domestic Terms, will be against YapStone. In such circumstances, You represent and warrant that You have all requisite power, authorization and authority to, and hereby do, appoint YapStone as the Payee’s agent for the limited purpose of receiving, collecting, facilitating, and/or transmitting Payments from Payors on behalf of Guests of Payee. You grant YapStone or Kigo (as applicable) a security interest in, and lien on, all Payee funds remitted to You by YapStone until such time as the funds are paid by You to the Payee. You will execute any additional documentation required for YapStone or Kigo to perfect such security interest or lien.
YapStone will provide Payors with a receipt and any other information required by applicable law confirming that Payment has been made on the applicable date.
Payments received by YapStone through KigoPay may be co-mingled and held with other Kigo Marketplace Customers’ funds in one or more pooled accounts at one or more FDIC-insured banks by YapStone on Your behalf and for the benefit of You and the other Kigo Marketplace Customers. YapStone has sole discretion over the establishment and maintenance of any such pooled account, and will not voluntarily make Payments funds available to its creditors in the event of bankruptcy or for any other purpose. You will not receive interest or any other earnings on any Payments funds that we handle for You. As consideration for using KigoPay, you irrevocably assign to YapStone all rights and legal interests to any interest and/or other earnings that may accrue or are attributable to its holding of your Payments funds in a pooled account or reserve. U.S. dollar balances held in any pooled account are eligible for FDIC pass-through insurance up to the FDIC maximum.
In its role as Your agent, YapStone may submit Payment transactions to, and receive funds from, any Card Network, NACHA, or Acquirer (terms defined below).
Kigo or YapStone, in their respective discretion, reserve the right to grant or deny any Guest or Payor the ability to use KigoPay.
Payments and Settlement Timeline. KigoPay will enable qualified Payors to make payments to You or Payee using payment channels including: credit cards, debit cards (collectively, “Cards”) and ACH/eCheck or other methods of electronic funds transfer (collectively, “ACH”) (collectively “Payments”). Based on your KigoPay application, Kigo and YapStone will determine your eligibility for KigoPay and any settlement timeline restrictions. Subject to batch cut-off times and delays in the banking system and any applicable risk holds as determined during the underwriting process, the applicable settlement timelines are as follows:
Advance Payment: For Kigo Marketplace Customers who qualify for the Advance Payment settlement timeline, (i) Aggregate daily Payments totaling less than $25,000 shall be settled into Your or Payee’s bank account, as applicable, within 1 Business Day following settlement of such Payments into YapStone’s designated bank account (minus the Kigo Fee); and (ii) Aggregate daily Payments totaling more than $25,000 shall be settled into Your or Payee’s bank account within 2 Business Days following settlement of such Payments into YapStone’s designated bank account (minus the Kigo Fee); or
Check In Payment: For Kigo Marketplace Customers who qualify for the Check In Payment settlement timeline, Payments shall be settled into Your or Payee’s bank account, as applicable, within 3 Business Days following the Guest’s scheduled check-in date at the rental property.
Initial Fraud Protection and Risk Hold. Following your first successful check-in date after subscribing to KigoPay, YapStone will hold all disbursements scheduled to occur for a time period not to exceed 30 days.
Guest Disputes and Refunds. If a Guest reasonably contests whether the paid-for services have been provided (for example, the Property is not as described or that You have failed to provide access to the Property), You authorize YapStone to return the applicable Payment to the Payor.
Kigo Marketplace Customer Refunds. You may initiate a refund of a Payment by communicating Your refund instructions directly to YapStone or directly to Kigo—who will communicate Your refund instructions to YapStone on Your behalf.
Authorization for Debits and Credits. You represent that You have the legal right, power, and authority to authorize YapStone to debit and credit the bank accounts listed on the applicable Forms. You authorize YapStone to debit and credit such accounts for the following purposes: (i) to credit Payments or any other amounts due to You or Payee; (ii) to debit any Chargebacks, refunds, or Reversals; and (iii) to debit any fees, charges, or other amounts owed by You to YapStone or Kigo. If You interfere with YapStone’s ability to debit any such bank accounts, Kigo and YapStone may suspend or terminate KigoPay without notice and You shall be liable to Kigo and YapStone (as liquidated damages and not as a penalty) for an amount equal to 3 times the amount of the applicable debit(s).
KigoPay Use Restrictions. You must use KigoPay in a lawful manner, and must obey all laws, rules and regulations applicable to Your use of KigoPay. This may include compliance with domestic laws related to use or provision of financial services, notification and consumer protection, unfair competition, privacy, false advertising, and any other laws relevant to Payments transactions.
Provision of Information. You must keep the information in your KigoPay account (including the Forms) current and accurate. In addition, you must provide any other information reasonably requested by Kigo or YapStone as required to deliver KigoPay. Your failure to update such information may result in Payments being misdirected, delayed or returned to the Payor. Neither Kigo nor YapStone shall be liable for any damages (direct or indirect) resulting from Your failure to provide current and accurate information and we may suspend your KigoPay account or terminate these KigoPay Domestic Terms if you fail to comply with this requirement.
3. APPLICABLE RULES.
Card Network Rules. When accepting Card payments, You must comply with all Network Rules applicable to merchants, including those provided by Visa (https://usa.visa.com/support/small-business/regulations-fees.html#3), MasterCard (www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html), American Express (www.americanexpress.com/merchantopguide), and Discover (www.discover.com/credit-cards/help-center/contact-us/). The Card networks may amend the Network Rules at any time without notice to you, and Kigo and YapStone reserve the right to change KigoPay at any time as necessary to comply with the Network Rules. Kigo and YapStone may share the information You provide to us so that Acquirers can assign your business activities to a particular payment network merchant category code (MCC). YapStone’s Acquirer will process all KigoPay Card transactions for You. You agree that settlement of funds to YapStone’s designated bank account discharges Acquirer of its settlement obligation to You and that any dispute regarding the receipt or amount of settlement shall be between YapStone and You.
Automated Clearinghouse (ACH). The ACH network is controlled and managed by the National Automated Clearinghouse Association (NACHA) and Acquirer member organizations. When submitting Payments over the ACH network, you must comply with the Network Rules for use of the ACH network (www.nacha.org/rules). NACHA may amend the Network Rules at any time, and Kigo and YapStone may amend these KigoPay Domestic Terms or make changes to KigoPay as necessary to comply with the Network Rules.
4. PROCESSING AND COLLECTION OF KIGO FEES.
Kigo Fees. Pursuant to Your Kigo Marketplace Bundle subscription, You have agreed to pay the Kigo Fee. You hereby authorize YapStone to automatically deduct the Kigo Fee from each Payment processed by YapStone and to remit such fee to Kigo on your behalf.
Right of Setoff. To the extent permitted by law, You authorize YapStone to withhold, without notice, from any payment due to You or Payee, any and all sums that You owe to Kigo or YapStone, including without limitation: (i) any Kigo Fees owed or (ii) amounts owed in connection with any Reversal, refund, Chargeback, liquidated damages, funds to establish the Reserve (as defined in Section 3.2), or other adjustment to prior Payments.
Collection Actions. If You fail to pay YapStone or Kigo any amounts owed under the Kigo Terms or these KigoPay Domestic Terms, Kigo and YapStone may initiate a collection action against You to recover such funds and You will be liable for any costs we incur during such collection efforts. Collection costs may include attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest (at an annualized rate of 10% or the maximum rate permitted by applicable law), and any other related costs.
5. UNDERWRITING, CHARGEBACKS AND REVERSALS.
Underwriting and Service Eligibility. You authorize YapStone, directly or through third parties, to make any inquiries or take any actions necessary to validate your identity, evaluate your creditworthiness, verify information that you have provided, and to evaluate your eligibility for KigoPay. You authorize YapStone to obtain financial and credit information, such as pulling Your personal credit report, or the credit report for your directors, officers, and principals. YapStone may share your information with our Acquirers, each of which may also make a determination regarding your eligibility. YapStone will notify You once Your account has been either approved or deemed ineligible for use of KigoPay. YapStone may periodically update this information to determine whether You continue to meet the eligibility requirements for KigoPay. If YapStone does not receive satisfactory information necessary to verify Your identity or determine that You are creditworthy, YapStone may suspend or terminate KigoPay and may, as applicable, withhold funds from You or refund any corresponding Payments to Payor(s).
Adequate Security; Reserve. YapStone or Kigo may require a guaranty, or other form of adequate security, including designating an amount of funds that You must maintain in a separate reserve account (a “Reserve”) to secure the performance of Your obligations under these KigoPay Domestic Terms. Kigo or YapStone may require a Reserve for any reason related to your use of KigoPay in an amount as reasonably determined by Kigo or YapStone to cover their respective potential losses. The Reserve may be raised, reduced or removed at any time, in Kigo or YapStone’s discretion, based on Your payment history, a credit review, the amount of any applicable arbitration award or court judgment against You, or otherwise as Kigo, YapStone or its Acquirer may determine or require. You agree that YapStone or Kigo may fund the Reserve from Payments due to You and grant YapStone or Kigo the right to debit the Reserve, without prior notice to You, to collect amounts owed to YapStone or Kigo. You grant Kigo or YapStone (as applicable) a security interest in and lien on any and all funds held in any Reserve. You will execute any additional documentation required for Kigo or YapStone to perfect such security interest in any funds in the Reserve. All interest or other earnings that accrue or are attributable to the Reserve will belong to Kigo or YapStone (as applicable).
Chargebacks and Reversals. Each Payment is subject to rights of Reversal or Chargeback. These rights exist between the Payors and their bank or Card issuer. You are responsible for any Chargeback or Reversal of a Payment, plus any related fees. In the event of a Chargeback or Reversal, YapStone may (i) recapture the Chargeback or Reversal amount, plus any related fees, from Your or Payee’s bank account or (ii) withhold such amount from the applicable Payment due to You or Payee. YapStone and Kigo shall only be obligated to remit funds actually received by YapStone on Your behalf that are not subject to Chargeback or Reversal.
Kigo or YapStone may, in their respective sole discretion and at Your expense, assist You in order to investigate or mediate a Chargeback. You must cooperate with Kigo and YapStone, and provide any reasonably requested information in a timely manner—as required by the dispute process. Kigo and YapStone may share information about a Chargeback with the Guest and/or Payor, the Payor’s financial institution, and Your financial institution in order to investigate or mediate such Chargeback. If the Chargeback is resolved in Your favor and YapStone is in possession of the applicable funds, YapStone will credit such funds to Your designated bank account. If the Chargeback dispute is not resolved in Your favor, or You choose not to contest the Chargeback, You forfeit Your right to the underlying Payment.
You acknowledge that all judgments as to the validity of Chargebacks are made at the sole discretion of the applicable issuing bank, Card Networks, or NACHA. You further acknowledge that American Express Chargebacks that are deemed to be fraudulent or unauthorized (as defined by American Express) may not be disputed.
If Kigo or YapStone determine that You might incur, or you are incurring, an excessive amount of Chargebacks, Kigo or YapStone may establish additional conditions governing your KigoPay access, including (i) establishing new Kigo Fees, (ii) establishing a Reserve, (iii) delaying Payments, or (d) terminating or suspending Your access to KigoPay.
6. DATA SECURITY AND PRIVACY.
Data Security. You are fully responsible for the security of any data processed through KigoPay (including, without limitation, any Guest or Payor-related data) that is in your possession, and You shall implement at least industry standard administrative physical and technical safeguards to protect against the unauthorized access, use or disclosure of such data. Such data may only be accessed by Your authorized employees and contractors as necessary to perform their job responsibilities. Neither Kigo nor YapStone will be responsible for any unauthorized access, use or disclosure of such data arising from your failure to implement the required safeguards.
PCI-DSS. You must comply with all applicable state and federal laws and industry rules in connection with your collection, security and dissemination of any personal, financial, Card, or transaction information, including, without limitation, the Payment Card Industry Data Security Standards (“PCI-DSS”). You must annually certify Your PCI-DSS compliance and, as requested, provide Kigo and YapStone with all documentation reasonably required to validate such compliance. You must use only PCI DSS compliant service providers in connection with the storage, or transmission of “Card Data” (defined as a cardholder’s account number, expiration date, and CVV2). You agree not to store CVV2 data at any time. Information about PCI-DSS can be found on the PCI Council’s website at www.pcisecuritystandards.org.
Privacy Policies and Use of Information. Pursuant to the terms of the Kigo (www.kigo.net/privacy-policy) and YapStone (www.yapstone.com/privacy-policy) Privacy Policies, Kigo and YapStone may collect and use personal and financial data relating to You, Payees, Guests and Payors as required to perform the KigoPay services.
7. INTELLECTUAL PROPERTY
As between Kigo, YapStone and You, Kigo and YapStone respectively retain ownership over (i) all inventions, methods, processes, technology and works of authorship that Kigo or YapStone has developed, conceived, reduced to practice or otherwise acquired, and all modifications, enhancements and derivative works thereof; and (ii) all Intellectual Property Rights in and to any of the foregoing. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Kigo or YapStone intellectual property.
Your Indemnification. You shall indemnify, defend, and hold harmless Kigo, YapStone, the Acquirer(s), their respective affiliates (including parent companies and subsidiaries), and each of their directors, officers, employees, and agents from and against any and all Claims arising out of or in connection with (i) Your operation of Your rental properties; (ii) Your, Payee’s, Guest’s or Payor’s unauthorized or non-permitted use of KigoPay; (iii) any alleged or actual breach of the Kigo Terms or these KigoPay Domestic Terms by You; (iv) Your gross negligence, fraud, misrepresentation, willful misconduct, violation of applicable law, or infringement of the rights of any person or entity; or (v) any data breach that was not caused by Kigo or YapStone. The foregoing indemnity obligations are limited in each instance to the extent that the Claim at issue is the result of the gross negligence or willful misconduct of Kigo or YapStone. The foregoing indemnity obligations are contingent upon Kigo or YapStone (as applicable) providing prompt written notice to You of any such Claims, provided that Your indemnity obligation shall be relieved only to the extent You are materially prejudiced by any delay or failure of Kigo or YapStone to provide such notice.
YapStone Indemnification. YapStone shall indemnify, defend, and hold harmless You, Your affiliates (including parent companies and subsidiaries), and each of their directors, officers, employees, and agents from and against any and all Claims arising out of or in connection with (i) any alleged or actual breach of these KigoPay Domestic Terms by YapStone; or (ii) YapStone’s gross negligence, fraud, misrepresentation, willful misconduct, violation of applicable law, or infringement of the rights of any person or entity; or (iii) a breach of data security caused by YapStone that results in the unauthorized disclosure of Your personal information or Payor’s cardholder information. The foregoing indemnity obligations are limited in each instance to the extent that any Claim is the result of the gross negligence or willful misconduct of any of You or Your affiliates. The foregoing indemnity obligations also are contingent upon You providing prompt written notice to YapStone of any such Claims, provided that YapStone’s indemnity obligation shall be relieved only to the extent YapStone is materially prejudiced by any delay or failure of You to provide such notice.
Indemnification Process. The party seeking indemnification hereunder (the “Indemnitee”) will: (i) promptly notify the other party (the “Indemnitor”) in writing of the Claim for which indemnification is sought: (ii) make all reasonable efforts to provide Indemnitor with all information and material in Indemnitee’s possession regarding the Claim; (iii) furnish to Indemnitor such assistance, at Indemnitor’s expense, as Indemnitor may reasonably request in connection with the investigation, settlement and defense of the Claim; and (iv) grant Indemnitor sole control over the defense and settlement of the Claim; provided, however, that (1) Indemnitee may participate in such defense at its option and expense, and (2) Indemnitor will not dispose of or settle any such Claim in any manner which may adversely affect Indemnitee’s rights or interests without Indemnitee’s prior written consent, which consent will not be unreasonably withheld or delayed.
Definition of Claim. For purposes of any indemnification matter, “Claim” means an action, allegation, assessment, cause of action, cease and desist letter, charge, citation, claim, demand, directive, fine, lawsuit or other litigation or proceeding, or notice issued or submitted by, from or on behalf of a third party, including any governmental agency, and all resulting judgments, bona fide settlements, penalties, damages (including consequential, indirect, special, incidental or punitive damages), losses, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees, expenses and costs) incurred in connection therewith.
EXCEPT FOR ANY EXPRESS WARRANTIES CONTAINED IN THESE KIGOPAY DOMESTIC TERMS: (I) KIGOPAY AND ALL CONTENT, SOFTWARE, MATERIALS AND OTHER INFORMATION PROVIDED BY KIGO OR YAPSTONE OR OTHERWISE ACCESSIBLE TO YOU IN CONNECTION WITH THESE KIGOPAY DOMESTIC TERMS, ARE PROVIDED “AS IS” AND (II) ACQUIRER, YAPSTONE, KIGO AND THEIR RESPECTIVE AFFILIATES AND SUPPLIERS MAKE NO WARRANTY OF ANY KIND (AND DISCLAIM ALL WARRANTIES OF ANY KIND) WITH RESPECT TO THE FOREGOING, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, NEITHER KIGO NOR YAPSTONE MAKES ANY WARRANTY THAT KIGOPAY WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NEITHER KIGO NOR YAPSTONE MAKES ANY WARRANTY REGARDING THE QUALITY OF KIGOPAY.
YOU ACKNOWLEDGE AND AGREE THAT ACQUIRER IS NOT A PARTY TO THESE KIGOPAY DOMESTIC TERMS AND THAT YOU SHALL HAVE NO RECOURSE AGAINST ACQUIRER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE KIGOPAY DOMESTIC TERMS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN.
10. LIMITATION OF LIABILITY.
NEITHER KIGO NOR YAPSTONE SHALL BE LIABLE FOR ANY FAILURES CAUSED BY ANY PERSON OR ENTITY OTHER THAN KIGO OR YAPSTONE THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF A PAYMENT OR KIGOPAY.
IN NO EVENT SHALL KIGO, YAPSTONE, ACQUIRER, ANY CARD NETWORKS, OR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE HEREUNDER FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, UNINTERRUPTED ACCESS, OR INTERRUPTION OF BUSINESS IN ANY WAY ARISING OUT OF OR RELATED TO THESE KIGOPAY DOMESTIC TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
EXCEPT WHERE THE CLAIM: (I) IS SUBJECT TO INDEMNIFICATION UNDER THESE KIGOPAY DOMESTIC TERMS; OR (II) ARISES OUT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, IN NO EVENT WILL THE AGGREGATE LIABILTY OF KIGO, YAPSTONE, ACQUIRER, ANY CARD NETWORKS, OR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS ARISING OUT OF THESE KIGOPAY DOMESTIC TERMS EXCEED THE FEES THAT KIGO AND YAPSTONE HAVE EARNED FROM YOU UNDER THESE KIGOPAY DOMESTIC TERMS DURING THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, SUCH LIMITATION SHALL NOT RESTRICT YOUR ABILITY TO RECOVER ANY AMOUNT OF OUTSTANDING PAYMENTS OWED TO YOU PURSUANT TO THESE KIGOPAY DOMESTIC TERMS.
FOR ANY LIQUIDATED DAMAGES CONTEMPATED BY THESE KIGOPAY DOMESTIC TERMS, THE PARTIES (I) INTEND THAT THE LIQUIDATED DAMAGES CONSTITUTE COMPENSATION, AND NOT A PENALTY; (II) AGREE THAT THE HARM CAUSED BY THE BREACH AT ISSUE WOULD BE IMPOSSIBLE OR VERY DIFFICULT TO ACCURATELY ESTIMATE; AND (III) THAT THE LIQUIDATED DAMAGES ARE A REASONABLE ESTIMATE OF THE ANTICIPATED OR ACTUAL HARM THAT MIGHT ARISE FROM SUCH BREACH.
Each party acknowledges that the other parties have entered into these KigoPay Domestic Terms relying on the limitations of liability provided herein, and that these limitations are an essential basis of the bargain between the parties.
11. TERM AND TERMINATION.
Term. These KigoPay Domestic Terms commence on the date that You order the Kigo Marketplace Bundle (including KigoPay) (the “Effective Date”) and will continue so long as you use KigoPay or until terminated by You, Kigo, YapStone (on behalf of itself or Acquirer) in accordance with the terms provided herein (the “Term”).
Termination. Any party may terminate these KigoPay Domestic Terms upon 30 days’ written notice to the other parties. Termination of these KigoPay Domestic Term will not does not terminate Your agreement with Kigo under the Kigo Terms. Notwithstanding the foregoing, Kigo or YapStone may suspend or terminate KigoPay immediately and may withhold funds from You or Payee, or refund any corresponding Payments to Payor, upon any of the following: (i) You become ineligible for KigoPay for any reason; (ii) Kigo or YapStone reasonably suspects You have violated applicable law; or (iii) You fail to timely furnish requested information, as contemplated herein.
Effect of Termination. Upon termination of these KigoPay Domestic Terms, YapStone will (i) disable Your access to KigoPay; and (ii) complete any Payments pending less a deduction of any outstanding fees owed to Kigo or YapStone prior to settlement. Such termination does not relieve You of any obligations to pay any fees, compensation, costs, penalties, Chargebacks, Reversals or any other amounts owed by You to Kigo or YapStone as provided herein, whether accrued prior to or after termination. You authorize YapStone to automatically deduct such amounts from Your bank account. Upon termination, You will remove all references to KigoPay or YapStone from Your publicly-facing materials.
Please read this Section carefully. It details the process for resolving potential disputes between You and YapStone. This Section does not apply to, and shall not govern, any dispute between You and Kigo.
YapStone Dispute Resolution Procedure. Most of Your concerns relating to YapStone can be resolved quickly through YapStone’s customer service department. YapStone’s goal is to learn about and address the underlying causes of the concern in an effort to avoid a dispute. To that end, You and YapStone shall cooperate and attempt in good faith to promptly resolve any potential dispute You have with YapStone. You and YapStone shall designate and engage authorized representatives who shall have the authority to resolve the potential dispute. If such representatives are unable to resolve the potential dispute, You shall report the potential dispute to YapStone’s legal team at Legal@YapStone.com. Any of Your disputes related to YapStone must be raised within 90 days of the relevant transaction or they are deemed permanently waived by You.
Agreement to Arbitrate. ANY DISPUTE ARISING BETWEEN YOU AND YAPSTONE THAT CANNOT BE RESOLVED AS SET FORTH HEREIN (INCLUDING, WITHOUT LIMITATION, ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATING TO THESE KIGOPAY DOMESTIC TERMS) SHALL BE FINALLY RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) UNDER ITS COMMERCIAL ARBITRATION RULES, INCLUDING THE AAA’S SUPPLEMENTAL PROCEDURES FOR CONSUMER-RELATED DISPUTES, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATION WILL BE CONDUCTED IN THE ENGLISH LANGUAGE, BEFORE A SINGLE ARBITRATOR, IN THE CITY OF WALNUT CREEK, CALIFORNIA. THE ARBITRATOR SHALL DECIDE THE DISPUTE IN ACCORDANCE WITH THE SUBSTANTIVE LAW OF THE STATE OF CALIFORNIA. THE COSTS OF AAA WILL BE SHARED EQUALLY BY THE PARTIES, EXCEPT THAT THE ARBITRATOR SHALL AWARD THE PREVAILING PARTY COSTS AND ATTORNEY’S FEES IN ANY ARBITRATION WHERE THE PREVAILING PARTY PREVAILS IN CONNECTION WITH CLAIMS THAT A PARTY FAILED TO TIMELY REMIT FEES OR AMOUNTS DUE TO THE OTHER PARTY.
Opt-Out Procedure. You can choose to reject this agreement to arbitrate (“Opt-Out”) by sending YapStone a written Opt-Out notice by certified mail to the mailing address for YapStone set forth in Notices section herein. For new YapStone customers, the Opt-Out notice must be postmarked no later than 30 days after the Effective Date. The Opt-Out notice must state that You do not agree to arbitrate and must include Your name, address, phone number, and the email address(es) provided at registration or on file with YapStone. You must sign the Opt-Out notice for it to be effective. This procedure is the only way You can opt out of the agreement to arbitrate. Opting out of the agreement to arbitrate shall have no impact or effect upon any other provisions of these KigoPay Domestic Terms. If You exercise the Opt-Out, then any legal action or proceeding between You and YapStone relating to these KigoPay Domestic Terms shall be brought exclusively in the state or federal courts located in Alameda County, California, or Contra Costa County, California.
13. CLASS ACTION WAIVER AND JURY TRIAL WAIVER.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES AGREES THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. FOR ANY COURT PROCEEDING ARISING OUT OF THESE KIGOPAY DOMESTIC TERMS OR THE TRANSACTIONS CONTEMPLATED HEREIN, EACH PARTY KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY. TO THE EXTENT A PARTY IS LEGALLY PERMITTED TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST ANOTHER PARTY, THE PARTIES HEREBY AGREE THAT: (1) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION HEREIN); AND (2) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
The parties acknowledge that, in conjunction with KigoPay, a party may communicate to the other parties (or their designees) certain confidential and proprietary information. This includes, without limitation, information concerning KigoPay and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) which may constitute 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 herein 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: (1) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (2) 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; (3) 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 performance of its duties hereunder; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained herein; 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.
Binding Upon Successors and Permitted Assigns. These KigoPay Domestic Terms shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. You may not assign these KigoPay Domestic Terms or any rights, obligations, or privileges herein without Kigo’s and YapStone’s prior written consent, not to be unreasonably withheld. Kigo and YapStone may assign their respective rights and obligations under these KigoPay Domestic Terms at any time, with or without notice to You.
Force Majeure. Neither Kigo nor YapStone will be responsible for delays, errors, failures to perform, interruptions or disruptions in KigoPay resulting from any act, omission or condition beyond Kigo’s or YapStone’s reasonable control, whether or not foreseeable or identified, including, without limitation, acts of God, labor strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disasters, hackers, or the failure of Your, Guest’s, Payor’s or any third party’s hardware, software or communications equipment or facilities.
Entire Agreement. These KigoPay Domestic Terms sets forth the entire agreement and understanding of the parties hereto in respect to KigoPay, 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 relating to KigoPay. Nothing in these KigoPay Domestic Terms, express or implied, is intended to confer or shall be deemed to confer any rights or remedies to any persons or entities not parties hereto.
Severability. If any provision of these KigoPay Domestic Terms 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 these KigoPay Domestic Terms as a whole, notwithstanding such stricken provision or provisions.
Amendment and Changes. Kigo and YapStone have the right to modify these KigoPay Domestic Terms at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of KigoPay, without notice, that Kigo or YapStone in their respective sole discretion deem to be reasonable under the circumstances. If the modification is anticipated to materially adversely affect Your use of KigoPay, Kigo or YapStone will notify You by email, posting on the KigoPay website or otherwise in writing.
Waiver. No waiver of any provision of these KigoPay Domestic Terms or any right or obligations of a party hereunder will be effective, except pursuant to a writing signed and delivered by the party waiving compliance. Any such written waiver will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions herein.
15.7. Applicable Law and Forum.
Applicable Law. These KigoPay Domestic Terms shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflict of laws principles.
Forum for Claims Between You and YapStone. Any court proceeding between You and YapStone under these KigoPay Domestic Terms will be adjudicated exclusively in the state and federal courts located in the State of California, County of Contra Costa or County of Alameda. You and YapStone agree to the personal jurisdiction by and venue in such courts and irrevocably waive any objection to such jurisdiction or venue. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YAPSTONE IS ALSO ENTITLED TO PURSUE A CLAIM IN SMALL CLAIMS COURT (AND NOT BY ARBITRATION) IF YOU FAIL TO TIMELY REMIT AMOUNTS DUE TO YAPSTONE, PROVIDED THAT YAPSTONE’S CLAIM AMOUNT IS WITHIN THE JURISDICTIONAL LIMITATIONS OF SUCH COURTS.
Forum for Claims Between You and Kigo. Any court proceeding between You and Kigo under these KigoPay Domestic Terms will be adjudicated exclusively in the state and federal courts located in the State of Texas, County of Dallas. You and Kigo agree to the personal jurisdiction by and venue in such courts and irrevocably waive any objection to such jurisdiction or venue.
Survival. Sections 1.1A, 1.4, 1.5, 1.9, 2, 3.2, 3.3, 4, 5, 6, 7, 8, 9.3, 10, 11, 12.1, 12.3, 12.4, 12.6, 12.7, 12.8, 12.9, 12.10, 12.11 (subject to the terms of the CEA), 12.12 (subject to the terms in the links provided), 12.13 and any other provisions that by their nature are intended to survive termination or expiration, shall survive termination or expiration of these KigoPay Domestic Term.
Notices. All notices and other communications provided to You by Kigo or YapStone will be in writing and may be delivered by email or a post made available on the KigoPay website. If by email, such notice will be delivered to the most current email address You provided through KigoPay. Notices to YapStone may be sent via email to firstname.lastname@example.org or via certified mail or overnight courier to: YapStone, Inc., Attn: Legal Department, 2121 N. California Blvd., Ste. 400, Walnut Creek, CA 94596. Notices to Kigo may be sent via email to email@example.com or via certified mail or overnight courier to: Kigo, Inc., 2201 Lakeside Blvd., Richardson, TX 75082, Attn: Matt Hoffman, with a courtesy copy (which shall not constitute notice) to Kigo, Inc., 2201 Lakeside Blvd., Richardson, TX 75082, Attn: Legal Department.
Third Party Service Providers and Partners. YapStone may, without notice, change its third party service providers, including without limitation, any third party processor, Acquirer, or bank. All rights reserved for third party service providers herein apply to successor third party service providers. YapStone may use third party processors or work with third party partners (collectively, “Third Party” or “Third Parties”) to provide some of the KigoPay services. Such Third Parties are intended third party beneficiaries of these KigoPay Domestic Terms and shall have the right to enforce directly against You the terms herein relating to (i) the provision of the Third Party’s services to You and (ii) the ownership and protection of such Third Party’s (and its licensors ) intellectual property rights. No Third Party shall have any responsibility or liability to You arising from YapStone’s obligations to You.
Commercial Entity Agreement. If during a calendar year the volume of Payments KigoPay processes on Your behalf exceeds the threshold specified by the Card Networks, You are bound by the Commercial Entity Agreement (“CEA”) with one of YapStone’s Acquirers and their sponsoring member banks as provided at: www.yapstone.com/legal/cea. The CEA does not modify any transaction arrangements, fees, or other terms between You and YapStone under these
American Express. You agree to be bound by the American Express Merchant Operation Regulations (available at: www.americanexpress.com/merchantopguide), which may be modified by American Express at any time, and the American Express Terms, available at: www.yapstone.com/legal/americanexpressterms.
Taxes. You are responsible for determining, collecting, and reporting any and all taxes, including occupancy/lodging taxes, required to be collected, reported, or paid in connection with Your business and use of KigoPay. Kigo and YapStone may also have tax reporting responsibilities in connection with KigoPay. As a result, You warrant, represent, and agree to provide Kigo and YapStone with a valid IRS Form W-9 and all other documents and information reasonably required for Kigo or YapStone to file the applicable forms with the IRS (such as Form 1099). You also acknowledge and agree that Payments may be subject to back-up withholding taxes. If required by applicable law, You authorize Kigo or YapStone to collect from each Payor and remit to the applicable local taxing authority on Your behalf, any and all applicable lodging, occupancy, hotel, transient, sales and use, or similar taxes (“Lodging Taxes”).
As used herein, the following definitions shall apply:
“Acquirer” means a merchant acquirer, eCheck or ACH service provider/processor, and/or PIN debit acquirer and their respective designated sponsoring member bank(s).
“Business Day” means a day where banks are generally open in the United States.
“Chargeback” means a request that a Payor files directly with his or her Card company or Card issuing bank to invalidate a processed Payment.
“Form” means the application form, property configuration form, bank change form, and any other information or form submitted by You to YapStone or Kigo.
“Guest” means an individual who books a stay at one of Your rental properties.
“Intellectual Property Rights” means all current and future patent rights, copyrights, trademarks, trade name, and logo rights, mask work rights, trade secret rights, database rights, moral rights and all other intellectual and proprietary rights of any kind or nature anywhere in the world (whether or not registered or perfected), together with all applications for or to register or renew any of the foregoing.
“Kigo Fee” means the fee that Kigo charges You for the provision of certain software and services which may include, without limitation, vacation rental software, channel manager, digital marketing services, guest app and booking services.
“Network Rules” means the guidelines, bylaws, rules, and regulations imposed by the financial services providers that operate payment networks supported by YapStone (including the payment card network operating rules for Visa, MasterCard, Discover or the American Express networks; and the NACHA operating rules governing the ACH network).
“Payor” means Your Guest, or someone paying on behalf of Your Guest, who uses KigoPay to process their Payment to You.
“Reversal” means a request that a Payor files with Kigo or YapStone to seek the return of funds for an ACH transaction.