ADDITIONAL TERMS OF SERVICE FOR APPFOLIO MYCASE SERVICES
Last Updated: November 4, 2019
APPFOLIO MYCASE SERVICES
The following additional terms of service apply specifically to the AppFolio MyCase Services and are hereby incorporated by reference into the Terms of Service, as that term is defined above.
1. Management and Accounting. By subscribing to the AppFolio MyCase Services (also referred to herein as the “MyCase Service(s)”), and during the term of the Agreement, you may access and use the AppFolio MyCase Services for the purpose of managing your legal practice and performing accounting functions.
2. Intended Use. The MyCase Service is designed and intended solely for use by licensed attorneys and legal professionals in the United States. Your use of the MyCase Service for any other purpose or in any other manner is at your own risk and YOU AGREE TO INDEMNIFY, DEFEND AND HOLD US HARMLESS FROM ALL CLAIMS RELATING TO OR ARISING FROM SUCH UNINTENDED USE OF THE MYCASE SERVICE.
3. Accurate Information. By subscribing to the MyCase Service, you consent to keep your profile and any information you post on the MyCase Service accurate and correct.
4. No Legal Advice. The MyCase Service is a suite of online legal practice management services; however, AppFolio is not involved in the correspondence or conversation between you and your clients. AppFolio does not provide legal advice and is not engaged in the practice of law.
5. Generally. The MyCase Service is made available on a pay-as-you-go basis in U.S. dollars, and is licensed in accordance with Section 5.1 of the AppFolio Terms of Service, not sold. All subscriptions to the MyCase Service come with an initial free trial period. If you do not provide your credit/debit card details to AppFolio within the free trial period, your account will be suspended and may only be reactivated by submission of valid credit/debit card information. AppFolio does not accept any responsibility for any loss of access to or use of the MyCase Service or your data or other information or content provided or stored in or by the MyCase Service during the suspension period. If you have provided credit/debit card details before the end of your free trial, and have elected to continue with a paid plan, you will be billed either monthly (at the end of the trial period) or annually, at your option. Regardless of your billing cycle, there are no refunds or credits for (a) partial months or years, as the case may be, of MyCase Service, (b) users de-authorized from the account, or (c) unused time with an open account. In order to treat all of our customers equally, no exceptions will be made. For any changes in your plan (e.g., different billing cycles, additional authorized users, etc.), your card will automatically be charged the new rate on your next billing cycle. Additional charges or increased fees may apply on a going forward basis for customers with an exceptionally high number of authorized users, an unusually high monthly ticket ratio per agent, or extraordinary usage of bandwidth, in which case we will notify you in advance to provide you with a reasonable opportunity to modify your use of the MyCase Service or terminate your subscription to avoid additional charges or increased fees.
6. Past Due Amounts. You acknowledge that your failure to pay fees or charges for the MyCase Service when due may result in suspension or termination of your subscription to the MyCase Service. If you fail to pay any of the fees or charges due hereunder, AppFolio reserves all of its rights, including without limitation the right to engage a collections agency to collect the fees. Further, you shall pay all costs incurred by AppFolio in connection with the collection of past due amounts, including, without limitation, reasonable attorneys' and collections agencies’ fees plus interest in an amount equal to the lesser of 1.0% per month or the maximum rate permitted by applicable law.
APPFOLIO MYCASE PAYMENT SERVICES
The AppFolio MyCase Payment Services below are for AppFolio customers who have subscribed to the AppFolio MyCase Services, and are to be utilized solely to facilitate the payment of legal fees and costs incurred in the course and scope of the attorney-client relationship.
ACH PAYMENT SERVICES
1. ACH Services. If you (“you” and “Merchant”) subscribe to AppFolio MyCase Services (the “MyCase Service”) you may elect to apply for ACH Payment Services, which Services will be conterminous with your subscription to the MyCase Service.
If you elect to apply for the ACH Payment Services (“ACH Services”), you shall be responsible for completing and submitting to AppFolio an initial written application and supporting documentation about your business and financial status, for AppFolio’s consideration in the account set-up and provision of the ACH Services. You acknowledge that AppFolio shall be entitled to rely upon the validity, accuracy and completeness of the information provided by you in your application and supporting documentation to AppFolio, for AppFolio’s use in performing its due diligence review of your status and financial standing for determining (a) if AppFolio will provide its ACH Services to you under this Agreement; and (b) the credit and account processing standards and limits that AppFolio will apply to the processing of your Entries. Subsequent to the initial acceptance and set-up of Merchant for AppFolio’s provision of the ACH Services, AppFolio may from time to time request that you provide updated information and supporting documentation to AppFolio to confirm your then-current business and credit status, which you shall apply best efforts to deliver to AppFolio within three (3) business days following receipt of AppFolio’s written request. Any failure by you to provide the information and supporting documentation requested by AppFolio via the application or by other means within a timely manner shall be deemed to be a material breach of this Agreement by Merchant.
When Merchant’s application has been accepted and approved by AppFolio, AppFolio shall provide the ACH Services. Merchant shall utilize and access the ACH Services in accordance with the terms of this Agreement and the practices and procedures established by AppFolio for the ACH Services, which have been communicated to Merchant.
2. Additional Representations and Warranties. To the extent you are using the ACH Services, you further warrant, represent and covenant to us that (a) you have verified or will verify the accuracy of transactions processed or payments collected via the ACH Services, (b) you have secured all necessary permissions, consents, licenses, waivers and release for the processing of the ACH Services and each part thereof, and (c) you will not generate transactions that violate the laws or regulations of the United States.
3. Our Rights. We may, at our sole discretion, restrict or remove your access to ACH Services, if you violate the Agreement or any related policies or guidelines.
ACH Transaction: An electronic payment transaction originated by Merchant and processed through the ACH Network in the Federal Reserve System.
Agreement: The AppFolio terms of service contained herein.
Authorized Account: Bank account or accounts as designated by Merchant in its written application for ACH Services and/or additional bank accounts designated by Merchant and communicated to AppFolio.
Customer: Merchant’s client who submits a payment to Merchant by means of ACH Transaction.
Entry: A transaction submitted by Merchant to AppFolio for processing by the ACH Services and further defined in the NACHA Rules.
JHA: Jack Henry & Associates, Inc., acting through its ProfitStars Division. AppFolio’s third-party payment processor for ACH Services.
NACHA Rules: The then-current rules, regulations and procedural guidelines published by the National Automated Clearing House Association (“NACHA”) and/or all regional payment alliances associated with NACHA.
Originating Depository Financial Institution or ODFI: In an ACH Transaction, the financial institution that receives the Entry from JHA and transmits the Entry to its ACH Operator for transmittal to a Receiving Depository Financial Institution for debit or credit to the Merchant’s or Customer’s account, as these terms are further defined in the NACHA Rules.
Receiving Depository Financial Institution or RDFI: A financial institution qualified to receive ACH Entries.
Reject/Return: The return of an original Entry that either could not be posted or was not able to be identified by the RDFI.
Settlement Account: A commercial demand deposit bank account which Merchant has established for JHA’s access and use to settle financial payment transactions processed by JHA under this Agreement.
5. Transmittal of Entries by Merchant. You hereby authorize AppFolio to initiate ACH credits and debits and adjustments to the Authorized Account(s). This authorization will remain in effect after termination of this Agreement until all of Merchant’s obligations to AppFolio and/or JHA have been paid in full. Confirmation from AppFolio of a credit or debit ACH transaction does not constitute a warranty that the Merchant will be paid for the transaction.
6. Authorizations. If individual ACH Transaction values or the monthly total of the Merchant’s ACH debits and credits exceeds AppFolio’s standard limits, Merchant may request AppFolio to increase these limits by agreeing to additional underwriting review to be performed by AppFolio. AppFolio reserves the right to cease providing the ACH Services to Merchant if AppFolio in its sole discretion determines that the ACH Services provided to the Merchant hereunder contribute to an unacceptable volume of Rejects or Returns. Additionally, AppFolio reserves the right to determine adjustment of fees, potential reserves, or cancel the ACH Service to Merchant if AppFolio, in its sole discretion, determines that other factors may affect the risk of fraud or Merchant instability.
7. Recoupment and Set-Off. Merchant shall immediately reimburse JHA for any returns or shortfalls that occur in Merchant’s Settlement Account. JHA reserves the right to delay the availability of funds for deposit without prior written notices to Merchant if, in its sole discretion, JHA deems itself at financial or relative risk for any and all Services performed under this Agreement.
Merchant hereby acknowledges and agrees that JHA shall have a right of setoff against:
(a) any amounts JHA would otherwise be obligated to deposit into Merchant’s account, and
(b) any other amounts JHA may owe Merchant under this Agreement.
8. Compliance With NACHA Rules and Laws. Each party shall comply with the then-current NACHA Rules that apply to ACH Transactions processed under this Agreement. Furthermore, Merchant agrees to comply with all applicable Federal, state and local laws, rules and regulations as amended from time to time regarding the subject matter of this Agreement, including but not limited to the Federal Fair Credit Reporting Act and Regulation E, 12 CFR 205 et. seq., Regulation CC, Articles 4 and 4A of the Uniform Commercial Code, the Electronic Funds Transfer Act and the Office of Foreign Assets Control (OFAC).
9. Term and Termination
9.1 Term: The term of this Agreement shall be conterminous with your subscription to the MyCase Service.
9.2 Notwithstanding the above, Termination For Cause may be exercised per the terms outlined below:
(a) Termination Due to Material Breach: This Agreement may be terminated by either party for cause upon giving the other party written notice of the breach of this Agreement committed by the other party and giving the other party thirty (30) days to cure the breach.
(b) Termination Due to Changed Circumstances: AppFolio reserves the right to terminate this Agreement in whole or in part at any time due to the occurrence of any of the following changed circumstances:
(1) Merchant becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors' rights, any of which in AppFolio’s reasonable judgment impairs the ability of Merchant to perform its responsibilities under this Agreement;
(2) In AppFolio’s sole judgment, there is a deterioration or other materially negative change in Merchant’s financial status or structure which increases the financial risk being assumed by AppFolio in processing Merchant’s Entries;
(3) There is a change in the laws, regulations or NACHA Rules that are applicable to this Agreement and AppFolio’s provision of any of the ACH Services which restricts or prohibits AppFolio from providing the affected ACH Services to Merchant or significantly increases AppFolio’s costs in providing the affected ACH Services to its customers generally; or
(4) Merchant’s business and/or assets are acquired by a competitor of AppFolio.
In these instances, AppFolio will provide written notice of the termination on this basis to Merchant, which shall become effective upon receipt by Merchant.
10. Representations and Warranties
10.1 AppFolio represents and warrants to Merchant that its ACH Services will be performed in a professional and timely manner consistent with ACH transaction processing industry standards and in accordance with the NACHA Rules and applicable laws and regulations. In the event that Merchant discovers an error in the ACH Services, which has been caused by AppFolio or JHA, Merchant shall immediately notify AppFolio of the existence and details of the error. AppFolio shall apply commercially reasonable efforts to correct the error within a reasonable time after AppFolio’s receipt of notification of the error. EXCEPT FOR THE FOREGOING WARRANTY, APPFOLIO MAKES NO OTHER WARRANTIES FOR THE SERVICES PROVIDED BY APPFOLIO AND APPFOLIO DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AppFolio does not guarantee the completeness or accuracy of the information provided from a third-party database. AppFolio shall have no liability to Merchant for any invalid Customer information provided by Merchant or Entries returned unpaid to Merchant.
10.2Merchant represents and warrants that:
(a) all Entries submitted to AppFolio for processing will comply with applicable laws and regulations and the NACHA Rules pertaining to the Entries;
(b) Merchant will comply with all laws, regulations and the NACHA Rules applicable to Merchant’s activities covered by this Agreement;
(c) all information provided by Merchant initially in its application and supporting documentation, and in all subsequent updates to its application and supporting documentation, provided to AppFolio pursuant to Section 1 above is valid, complete, accurate and up-to-date when given; and
(d) the individual signing and submitting this Agreement, the application for purchase of the ACH Services from AppFolio, and all future updates to the application and supporting documentation has the legal authority to make and bind Merchant to the agreements, warranties and commitments stated in this Agreement and the submitted application on Merchant’s behalf.
(e) it is AppFolio’s corporate policy to not knowingly provide ACH Services for any person or organization whose use of the ACH Services involves or pertains to any activity which is illegal under U.S. law or involves an activity or business with which AppFolio declines to accept and conduct business generally (“Excluded Activity or Activities”). Merchant warrants that it will not use the ACH Services to conduct any of the Excluded Activities, which include but are not limited to the following:
(1) Check cashers or money services businesses (MSBs)
(2) Credit repair services, debt consolidation and forgiveness programs
(3) Government grant or will-writing kits
(4) Internet gambling or accepting payments in connection with Internet gambling
(5) Internet pharmaceutical sales
(6) Internet tobacco or firearms sales
(7) Magazine subscriptions
(8) Organizations residing outside of North America or U.S. Territories
(9) Outbound telemarketing
(10) Payday or subprime loan business
(11) Pornography or other sexually-oriented business
(12) Prepaid vacation/timeshare solicitation services
(13) Psychic or horoscope consultation services
(15) Any other activity which AppFolio deems, in its sole discretion, to adversely reflect on AppFolio’s reputation.
AppFolio reserves the right to reject any proposed Merchant account or to refuse to process a transaction for a Merchant that AppFolio deems, in its sole discretion, may use the ACH Services in conjunction with any Excluded Activity. If AppFolio discovers after accepting a Merchant account that the Merchant is utilizing the ACH Services in conjunction with an Excluded Activity, AppFolio may immediately terminate its provision of ACH Services to that Merchant.
11.1 AppFolio shall indemnify, defend and hold Merchant harmless from and against all claims, actions, losses and expenses, including reasonable attorney’s fees and legal costs, incurred by Merchant arising out of a third party claim that the ACH Services provided by AppFolio under this Agreement infringe the valid intellectual property rights of the third party, provided that AppFolio is promptly notified by Merchant of its receipt of notice of such claim, is given control of the defense or settlement of such claim, and is given reasonable assistance requested by AppFolio at AppFolio’s cost with regard to such claim.
11.2 Merchant shall indemnify, defend and hold AppFolio, JHA, the ODFI, and the Bank of First Deposit harmless from and against all claims, actions, losses and expenses, including reasonable attorney's fees and legal costs, incurred by AppFolio, JHA, the ODFI, and/or the Bank of First Deposit arising out of (a) Merchant’s breach of this Agreement (including any of Merchant’s representations, warranties, covenants or obligations under this Agreement), the NACHA Rules, or applicable laws and regulations; (b) return of an Entry due to incorrect or incomplete data or information provided by Merchant in the submission of the Entry to AppFolio, a closed Customer account, or insufficient funds in the Customer account, and/or (c) fraudulent activity, wrongful or unauthorized use of the Services, or submission of fraudulent or illegal Entries by Merchant or a third party who has gained access to the ACH Services through the use of Merchant’s MyCase Service account.
12. Limitations of Liability. IN NO EVENT SHALL APPFOLIO, JHA, THE ODFI, OR THE BANK OF FIRST DEPOSIT BE LIABLE TO MERCHANT OR ANY OTHER PARTY FOR ANY LOSS OF PROFITS OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES WAS FORESEEABLE. Except for AppFolio’s indemnification liability stated in Section 11.1 above and actual, direct damages arising from any action or omission of action by AppFolio which constitutes the gross negligence or willful misconduct of AppFolio, AppFolio’s aggregate, cumulative liability to the Merchant for all claims of actual direct damages relating to the ACH Services, this Agreement, or the relationship between AppFolio and Merchant, including any cause of action in contract, negligence, tort, strict liability or otherwise, shall not exceed an amount equal to the total amount of fees paid by the Merchant to AppFolio for ACH Services delivered under this Agreement during the three (3) month period preceding the origination of the claim giving rise to liability.
13. Security Procedures; Confidentiality. Merchant agrees to comply with the procedures established by AppFolio for security as are communicated to it either orally or in writing, including the confidentiality provisions of the MyCase Service Agreement, and will contact AppFolio immediately if it has reason to believe that confidentiality has been or is likely to be breached.
14. Non-Compliance. Non-compliance with the terms of this Agreement could result in immediate implementation of non-compliance fines to Merchant and/or cessation of the ACH Services.
15. General Provisions.
15.1 Governing Law: This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.
15.2 Assignment: This Agreement shall not be assigned or delegated in whole or in part by Merchant to any other party without the prior written consent of AppFolio, which shall not be unreasonably withheld.
15.3 Legal Fees: In the event of any dispute arising out of or related to the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees, court costs and collection expenses in addition to any other recovery.
15.4 Force Majeure: AppFolio shall not have any responsibility and shall incur no liability for any failure to carry out, or any delay in carrying out, any of its obligations under this Agreement resulting from acts, omissions, or inaccuracies of third parties not under its reasonable control, acts of God (including, but not limited to, fire, floods or adverse weather conditions), labor difficulty, legal constraint, war, terrorism, the unavailability or interruption of transmission or communication facilities or utilities, equipment or other technological failure, emergency conditions or any other cause beyond its reasonable control.
15.6. Independent Contractors: The parties are and shall remain independent contractors and shall have no legal right or authority to make any binding commitments on behalf of the other party.
15.7 Severability. The holding of any provision of this Agreement as invalid, illegal, or unenforceable, in whole or in part, shall not affect the other provisions of this Agreement, which shall remain in full force and effect.
15.8 Survival. All representations, warranties, covenants, and agreements of the Merchant contained herein shall survive the execution, delivery and termination of this Agreement.
CREDIT CARD PAYMENT SERVICES
1. Verification. We (“we” and “AppFolio”) may require you (“you” and “Merchant”) to provide additional information to verify your identity as a condition of providing the Credit Card Payment Services (the “Services”) to you. Such information may include a government issued identification such as a passport or driver’s license, a business license, or your employer verification number (EIN), valid U.S. credit card, a verified bank account, or other financial or personal information. We may make, directly or through third parties, any inquiries we consider necessary to validate information that you provide to us. We may also ask for permission to inspect your business location. If you refuse any of these requests or provide inaccurate, untrue, or incomplete information, we have the right to suspend or terminate your Services account in our sole discretion. By accepting these terms, you specifically authorize us to request identity verifying information about you from third parties, including a consumer report that contains your name and address. You agree that we are permitted to contact and share information about you and your account with banks and other financial institutions. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct our risk management process. You further agree that such financial institutions are permitted to contact you about research, marketing and other matters related to your credit card use.
Agreement: Collectively, the AppFolio General Terms and Conditions, these AppFolio MyCase Services terms of service and all rules, regulations and policies incorporated herein. In the event of conflict between these AppFolio MyCase Services terms of service and the General Terms and Conditions, these terms of service will prevail.
Account: U.S. bank account or accounts as designated by Merchant in its written application for the Services and/or additional bank accounts designated by Merchant and communicated to AppFolio in writing.
Card Brands: Collectively, payment cards bearing the trademarks of MasterCard Incorporated (“MasterCard”), Visa U.S.A., Inc. (“Visa”), Discover Financial Services (“Discover”), and the American Express Company (“American Express”).
Association: VISA, MasterCard, Discover or American Express
Customer: Merchant’s client who submits a payment to Merchant by payment cards.
Member Bank: A bank that is a member of the Federal Reserve System.
Merchant Supplier: A third party other than Processor used by you in connection with the Services received hereunder, including but not limited to, software providers, equipment providers, and/or third party processors.
Processor: Vantiv, LLC and its designated Member Bank that is AppFolio’s third-party payment processor for the Services.
3. Acceptable Cards. The Service allows you to accept payments initiated with the Card Brands. We may remove or add cards that we accept at any time without prior notice. We will only process cards that receive an authorization from the applicable Card Brand or card issuer.
4. AppFolio’s Role. AppFolio is only a payment service provider and not a bank and does not offer banking or money service business services as defined by the United States Department of Treasury. As a merchant payment processor, we merely collect and relay information generated in connection with these payments. In order to serve in this role, we must enter into agreements with Card Brands, other processors and banks. These third parties may require that our merchant customers enter into an agreement with Processor. If you are such a user, we will provide you a “Merchant Services Agreement For Sub-Merchants” that you must execute in order to use the services.
5. Applicable Card Brand Rules & Laws. The Card Brands require that you and AppFolio comply with their applicable bylaws, rules, and regulations, and any other program or requirement that may be published and or mandated by the Card Brands (“Card Brand Rules”). The Card Brands have the right to amend their rules and regulations. AppFolio may be required to change these terms in connection with amendments to the Card Brand Rules, which are located at:
Without limiting the generality of the foregoing, you agree to the following:
You are prohibited from (a) assessing a surcharge for the use of a card in connection with any transaction, or (b) dispensing cash on any card transaction.
The Card Brand Rules may contain provisions that affect your legal rights, including arbitration agreements, jury and class action waivers, limitations of liability, indemnification obligations, and more. By accepting payments initiated with Card Brands you agree to such provisions.
If you permit recurring transactions, you must (a) obtain your customer’s consent to periodically charge the customer on a recurring basis for the services purchased; (b) retain this permission for the duration of the recurring services and provide it upon request to AppFolio, Processor or the issuing bank of your customer’s Card; and (c) retain written documentation specifying the frequency of the recurring charge, the duration of time during which such charges may be made and the amount or range of amounts that may be charged. You must not submit any recurring transaction after receiving: (i) a cancellation notice from your customer (so long as such notice was timely provided at least three (3) days prior to the transaction date); or (ii) notice from AppFolio, Processor or any Card Brand that the Card is not to be honored. In your transaction data, you should include an electronic indicator that the transaction is a recurring transaction. You will promptly notify AppFolio in the event you learn that cardholder information has changed with respect to a customer that is currently subject to recurring charges.
You may not suggest or require that your customers waive their right to dispute a card payment transaction.
You represent, warrant and covenant to comply with all the Card Brand Rules and all applicable state, federal, and local laws, rules, and regulations (“Laws”). Without limiting the foregoing, you represent, warrant and covenant to fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the US Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission.
Without limiting any other available remedy, in the event you fail to comply with the Card Brand Rules and Laws, your right to accept payments initiated by the Card Brands may be terminated and you and the individual owners of your business may be placed on the Mastercard Alert to Control High-Risk Merchants (also referred to as MATCH).
6. Your Authorization For Funds Related to Payment Transactions. By accepting these terms, you authorize Processor to hold, receive, and disburse funds via credit and debit entries to your designated bank accounts on your behalf. Your authorization permits Processor to generate a paper draft or an electronic funds transfer to process each payment transaction that you authorize. Your authorizations will remain in full force and effect while you use the payment processing services.
7. Your Authorization For Fee Assessment. By accepting these terms, you authorize AppFolio to assess all applicable transaction fees from your designated Account. Your authorization permits us to generate a paper draft or an electronic funds transfer to process such fee payments. Your authorizations will remain in full force and effect while you use the payment processing services.
8. Restricted Use. You shall only complete and present for processing sales transactions produced as the direct result of bona fide sales made by you to cardholders, and you are expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than you, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities. You may not use the services to process cash advances. You may not promote one or more Card Brands to the detriment of other Card Brands or otherwise persuade your customers to use one or more particular Card Brands in lieu of other Card Brands.
9. Prohibited Transactions. You acknowledge and agree that you will not accept card payments if your business, or any segment of your business, involves any of the following:
- Adult entertainment and/or adult content websites including Electronic Commerce adult content (videotext) merchants that would include MCC’s 5967,7273 and 7841
- Buyer Clubs/Membership Clubs
- Direct Marketing: Continuity or Subscription services or merchants including MCC 5968 and 5969
- Direct Marketing-Travel Related Arrangement Services including MCC 5962
- Direct Marketing-Inbound Telemarketing including videotext services and MCC 5967
- Gambling Activities and Establishments including MCC 7995, including lotteries, internet gaming, contests, sweepstakes, or offering of prizes as an inducement to purchase goods or services
- Infomercial merchants
- Internet Pharmacies
- Multi-Level Marketing Businesses
- Outbound Telemarketers and Telecom merchants including MCC’s 4814,4816, and 5966
- Rebate-Based Businesses
- Up-Selling merchants
- Any merchant that accepts a card at a scrip-dispensing terminal
- Airlines including Charter Airlines
- Bidding Fee Auctions including Penny Auctions
- Brand or Reputational damaging, potential or otherwise, activities including Bestiality, Child Pornography, Escort Services, Mail Order Brides, Occult
- Commodity Trading or Security Trading
- Credit Counseling or Credit Repair Services
- Credit Protection or Identity Theft Protection Services
- Cruise Lines
- Currency Exchanges or Dealers
- Debt Elimination, Debt Reduction or Debt Consulting Services
- Digital Wallet or Prepaid Companies
- Discount Medical or Dental plans including Discount Insurance
- Discount Coupon merchants or Online Sites
- Distressed Property Sales and/or Marketing
- Drug Paraphernalia
- Firearms including Ammunition
- High interest rate non-bank consumer lending including payday lending and title loans
- Investment or “get rich quick” merchants, businesses or programs
- Merchants utilizing negative option, renewal, or continuity subscription practices
- Marketing Activities involving “pay only for shipping” and/or “free trial” periods
- Marijuana dispensaries and related products or services
- Merchants offering Special Incentives
- Money Transfer, Wire Transfers, Money Orders, Transmitters, and Check Cashing including merchants required to be registered as Money Service Business
- Pawn Shop
- Prepaid Phone Cards
- Prepaid Phone Services
- Pseudo Pharmaceuticals
- Quasi Cash or Stored Value
- Real Estate Flipping
- Sale of Mobile Minutes
- Selling or Sales of Social Media Activity
- Sports Forecasting or Odds Making
- Substances designed to mimic illegal drugs
- Timeshares including resale’s and related marketing
- Transacting Virtual Currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world
The foregoing list is not exhaustive and may be updated from time to time. Please check back frequently to ensure your continued compliance.
10. Account Deposits. Subject to the payout schedule below, Processor will deposit to your Account the amounts actually received by Processor for transactions submitted through the Service. Once your bank account information is verified, Processor will automatically deposit your money in your designated bank account. Funds for any given transaction will not be deposited until the transaction is deemed complete. Transactions will be deemed complete when Processor has received or sent the funds and when Processor or the designated financial institutions have accepted the transaction or funds. You are responsible for monitoring your transactions and ensuring that our payments to you, via Processor, are correct. You must notify us of any errors in payments made to you within thirty (30) days of the error first appearing on your electronic transaction history. Failure to notify us of such an error will be deemed a waiver of any right to amounts owed to you.
11. Standard Payout Schedule. Once you validate your Account, we, via Processor, will automatically initiate a payout to your Account for any transactions received on your behalf at the end of every business day. Payouts to your Account will normally register within 1-2 business days.
12. Availability of Funds. Should we need to conduct an investigation or resolve any pending dispute related to your Account, we may defer payout or restrict access to your funds for the entire time it takes for us to do so. We also may defer payout or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
13. Your Account History. When a payment is made to your Account, we will update your Account activity on the AppFolio MyCase Service and provide you a transaction confirmation. The confirmation will serve as your receipt. Summaries of your account activity are available through the AppFolio MyCase Service. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Account and your use of the Service, and (b) reconciling all transactional information that is associated with your Account. If you believe that there is an error or unauthorized transaction activity is associated with your Account, you agree to contact us immediately.
14. Receipts. You must make a written receipt available to your customers for any transaction greater than fifteen dollars ($15.00). You may give your customers the option to receive or decline a written receipt. As a convenience, but not in lieu of a written receipt, you may also offer electronic receipts for delivery through email to your customers.
15. Customer Service. You are solely responsible for all customer service issues relating to your services, including pricing, order fulfillment, order cancellation by you or customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us.
16. Refunds and Returns. By accepting payment card transactions through the Service, you agree to process returns of, and provide refunds and adjustments for, your services through your account in accordance with these terms and the Card Brand Rules. Card Brand Rules require that you will (a) maintain a fair return, cancellation or adjustment policy; (b) disclose your return or cancellation policy to customers at the time of purchase, (c) not give cash refunds to a customer in connection with a card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a card sale refund. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage that the customer paid to return merchandise. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the buyer, you may still receive a chargeback relating to such sales.
You can process a refund through your Account up to sixty (60) days from the day you accepted the payment. If your balance is insufficient to cover the refund, we will request your authorization to withdraw up to the requested refund amount from your bank account. Processor will then withdraw the amount you were paid from your bank account, and credit it back into your customer’s card. We and our Processor have no obligation to accept any returns of any of your services on your behalf.
17. Your Liability for Chargebacks. The amount of a transaction may be reversed or charged back to your account (a “chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Card Brand, Processor, or a payer’s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of these terms.
18. Our Collection Rights for Chargebacks. Processor may deduct the amount of any chargeback and any associated fees, fines, or penalties assessed by the Card Brand from your Account, any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending chargebacks, we may delay payouts from your Account. Further, if we reasonably believe that a chargeback is likely with respect to any transaction, Processor may withhold the amount of the potential chargeback from payments otherwise due to you under these terms until such time that: (a) a chargeback is assessed due to a customer’s complaint, in which case Processor will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a chargeback on the transaction will not occur. If we, via our Processor, are unable to recover funds related to a chargeback for which you are liable, you will pay us the full amount of the chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all account deficit balances unpaid by you. You hereby authorize Processor to charge the amount of daily chargebacks from your Accounts that originally received the relevant payment amounts by making an ACH debit from your Account.
19. Excessive Chargebacks. If we determine that you are incurring an excessive amount of chargebacks, we may establish controls or conditions governing your account, including without limitation, by (a) establishing new processing fees, (b) delaying payouts, and (c) terminating or suspending the services.
20. Contesting Chargebacks. You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Service. Towards that end, you permit us to share information about a chargeback with the payer, the payer’s financial institution, and your financial institution in order to investigate and/or mediate a chargeback. We will request necessary information from you to contest the chargeback. If the chargeback is contested successfully, we will release the reserved funds to your account. If a chargeback dispute is not resolved in your favor by the Card Brand or issuing bank or you choose not to contest the chargeback, we may recover the chargeback amount and any associated fees as described in these terms. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating chargeback disputes.
21. Our Set-off Rights. To the extent permitted by law, we, and our Processor, may set off against the balances for any obligation you owe us under these terms, including without limitation any chargebacks. Any fees assessed in association with a transaction will be deducted from your designated Account.
22. Our Processing Errors. We will attempt to rectify processing errors that we discover. If the error resulted in your receipt of less than the correct amount to which you were entitled, we will credit your account for the difference. If the error results in your receipt of more than the correct amount to which you were entitled, we will debit the extra funds from your account. We will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
23. Card Data Security and Access to Cardholder Data. You agree to the confidentiality and security requirements required by the Card Brands including, but not limited to, the following:
The VISA Cardholder Information Security Program, available at: https://usa.visa.com/support/small-business/security-compliance.html
The MasterCard Site Data Protection Program, available at: https://www.mastercard.us/en-us/merchants/safety-security/security-recommendations/site-data-protection-PCI.html
The American Express Data Security Requirements, available at: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-dsr.pdf
If and to the extent you elect to accept in-person credit card payments or otherwise gain access to a cardholder’s account number, expiration date, and CVV2 (collectively, “Cardholder Data”), you agree that at all times you will be compliant with the Payment Card Industry Data Security Standards (“PCI DSS”). In the event you fail to comply with PCI DSS, we may terminate your rights under this Agreement and, in addition, you may be subject to fines and additional liabilities imposed by Processor, the Associations or other applicable regulatory bodies.
PCI DSS requires that you implement and maintain certain data security policies and procedures. As of the date of this Agreement, PCI DSS mandates that you comply with the following requirements:
1. Install and maintain a network firewall to protect Cardholder Data.
2. Do not use vendor-supplied defaults for system passwords and other security parameters.
3. Protect stored Cardholder Data.
4. Encrypt transmission of Cardholder Data across open, public networks.
5. Protect all systems against malware and regularly update antivirus software or programs.
6. Develop and maintain secure systems and applications.
7. Restrict access to Cardholder Data by business need to know.
8. Identify and authenticate access to system components.
9. Restrict physical access to Cardholder Data.
10. Track and monitor all access to network resources and Cardholder Data.
11. Regularly test security systems and processes.
12. Maintain a policy that addresses information security for all personnel.
As part of the above, you must not, and will ensure that your Merchant Suppliers do not, store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by the Card Brand Rules or the Bank Rules. You or your Merchant Suppliers must not store CVV2 data at any time. In addition, you agree that you will not (i) use Cardholder Data for any purpose other than to support card payments for your services, (ii) use the Cardholder Data for any purpose that you know or should know to be fraudulent or in violation of any Card Brand Rules, or (iii) sell, purchase, provide or exchange in any manner or disclose Cardholder Data to anyone other than the Card Brands or in response to a government request.
PCI DSS REQUIREMENTS ARE SUBJECT TO CHANGE, PLEASE VISIT THE PCI SECURITY STANDARDS COUNCIL WEBSITE (AVAILABLE AT WWW.PCISECURITYSTANDARDS.ORG) FREQUENTLY TO BE SURE YOU REMAIN IN COMPLIANCE WITH APPLICABLE REQUIREMENTS.
You also agree that you will use only PCI DSS compliant Merchant Suppliers in connection with the storage or transmission of Cardholder Data. You will cause all Merchant Suppliers to complete any steps or certifications required by any Association (e.g., registrations, PA-DSS, PCI DSS, audits, etc.). You will cause your Merchant Suppliers to cooperate with Processor in completing any such steps or certifications (if applicable), and in performing any necessary due diligence on such Merchant Supplier. You shall be solely responsible for any and all applicable fees, costs, expenses and liabilities associated with such steps, registrations, and certifications.
You shall certify in writing your compliance with PCI DSS promptly upon our request or in accordance with the Card Brand Rules. We have the right to conduct PCI DSS audits, from time to time and at your sole expense, performed by us or a third party designated by us to verify your compliance with the terms of this Agreement.
In the event you learn or reasonably suspect that Cardholder Data was accessed or retrieved by any unauthorized person or entity, contact us immediately and in no event more than 24 hours after becoming aware of such activity. In the event of the foregoing, you must, at your own expense, (i) perform or cause to be performed an independent investigation (including a forensics analysis) of any data security breach of Cardholder Data or transaction data, (ii) perform or cause to be performed any remedial actions recommended by any such investigation, and (iii) cooperate with us in the investigation and resolution of any security breach.
24. Limitation of Liability.
Notwithstanding anything in this Agreement to the contrary, in no event shall the parties hereunder, or their affiliates or any of their respective directors, officers, employees, agents or subcontractors, be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. Notwithstanding anything in this Agreement to the contrary, AppFolio’s and Processor’s cumulative liability for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (including those arising out of or related to this Agreement) and regardless of the form of action or legal theory and whether or not arising in contract or tort shall not exceed the fees paid by you to AppFolio for Credit Card Payment Services delivered under this Agreement for the three (3) months prior to the time the liability arose, such amount not to exceed fifty thousand dollars ($50,000).
You shall indemnify, defend, and hold harmless AppFolio, and its directors, officers, employees, affiliates and agents (the “AppFolio Indemnified Parties”) from and against all proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by AppFolio Indemnified Parties resulting from or arising out of (i) your use of the Services pursuant to this Agreement or any of your acts, omissions, cardholder disputes and other cardholder customer-service related issues caused by you, (ii) your business or your Customers, (iii) any sales transactions submitted by you under this Agreement, (iv) any nonperformance of any provision of this Agreement by you or your agents (including any Merchant Supplier) including any representation, warranty, covenant or obligation under this Agreement. The indemnification shall survive the termination of the Agreement.
This Agreement shall not be assigned or delegated in whole or in part by you to any other party without the prior written consent of AppFolio, which shall not be unreasonably withheld. AppFolio may freely assign this Agreement without your consent. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
27. Term and Termination. The term of this Agreement shall be conterminous with your subscription to AppFolio MyCase Services. Notwithstanding the above, AppFolio, at its sole discretion, may suspend or cease providing the Credit Card Payment Services or terminate this Agreement at any time for any reason.