Scratchpay Program Agreement for US Providers
Last Updated: January 2, 2023
This Scratchpay Program Agreement for U.S. Providers (this "Agreement") is a legal and binding agreement between Scratch Financial, Inc. ("Scratchpay"), located at 225 S. Lake Avenue, Suite 250, Pasadena, CA 91101, and you, as a current or prospective customer of Scratchpay's services ("Provider"). Scratchpay offers Provider the ability to accept payments from Provider's customers ("Clients") for the purchase of goods and/or services provided by Provider (each such payment, a "Scratchpay Payment") as further described in this Agreement (the "Program").
THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION. IN THE EVENT OF A DISPUTE, THE ARBITRATION PROVISION WILL HAVE A SUBSTANTIAL EFFECT ON YOUR RIGHTS, INCLUDING YOUR RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION.
If any Provider or Provider location is located in Arkansas, Georgia, Hawaii, Mississippi, Nebraska, Nevada, Virginia, West Virginia, Provider further agrees to the Additional Program Agreement for Providers located in Nebraska, Hawaii, West Virginia, Arkansas, Georgia, Mississippi, Virginia or Nevada with respect to transactions under the Program between Provider and Clients occurring in these states.
1. GENERAL PROVIDER OBLIGATIONS.
1.1. Signage and Other Displays. Provider agrees to display Scratchpay-approved point-of-sale signage, online logos or other online or offline displays relating to the Program as required by Scratchpay ("Scratchpay Marketing Materials"). Provider may not make any changes to such Scratchpay Marketing Materials without Scratchpay's prior written approval.
1.2. Duty to Inform. Provider agrees to immediately notify Scratchpay in the event of: (i) Providersuspecting fraud or illegal, suspicious or unusual activity relating to a Scratchpay Payment; or (ii) any material change to Provider's information, including the nature of its business or the goods and services sold by Provider, that would pose a material adverse risk to Provider's financial standing (including any termination for cause by another payment provider or network of Provider's acceptance of payments) or to Scratchpay's ability to offer the Program to Provider or any Client of Provider.
1.3. Fees. Provider agrees to pay all applicable charges and fees for its participation in the Program, including Provider Fees for the acceptance of Scratchpay Payments, as set forth in the Pricing Schedule at the end of this document (collectively, "Provider Fees"). Scratchpay may change the Provider Fees at any time by notifying Provider in accordance with Section 15.1 of this Agreement. Provider will not impose or otherwise require Client to pay for any part of any Provider Fee or other charge assessed by Scratchpay to Provider, whether through any surcharge, additional fee or increase in the price or goods or services.
1.4. Client Disputes. Provider agrees to cooperate with Scratchpay in resolving disputes concerning any Scratchpay Payment made to Provider, including responding within seven (7) days of any inquiry or request for information from Scratchpay. If Provider receives a complaint or inquiry from Client relating to Scratchpay (including a Scratchpay Payment or Scratchpay Account), Provider will refer Client to contact Scratchpay to resolve the complaint or inquiry, provided however that Provider may verify to Client receipt (or not) of a Scratchpay Payment. Complaints of any kind relating to the actual quality or type of service actually performed by Provider on behalf of the Client is the responsibility of the Provider. This does not apply to Client Complaints regarding payments for Provider services. See Section 3.2.
1.5. Provider Policies. Provider will (i) maintain fair and legally compliant refund, return and/or exchange policies, (ii) post such policies in a clear and conspicuous manner at the point-of-sale or other location that is clear and readily noticeable before Client completes a purchase, and (iii) comply with such policies with respect to any purchase that is paid for with a Scratchpay Payment.
1.6. Scratchpay Dashboard. Provider will comply with Scratchpay's online dashboard licenses and operating requirements when accessing and using the Scratchpay online dashboard ("Dashboard"). Provider is responsible for the security and confidentiality of its login credentials to the Dashboard, and is liable for all access and use of the Dashboard. Provider must notify Scratchpay immediately in the event Provider discovers any unauthorized use of its login credentials or the Dashboard.
1.7. Provider Information. At initial registration, and upon Scratchpay's request thereafter from time to time, Provider agrees to provide Scratchpay with all information, including Provider's financial statements (collectively, "Provider Information"), reasonably necessary for Scratchpay to verify Provider including its identity, status, financial standing or other requirements for Provider's participation in the Program. Scratchpay will treat Provider Information as Provider's Confidential Information in accordance with this Agreement.
1.8. Non-Discrimination. Provider may not take any action or make any communication that would discriminate against or otherwise disadvantage Scratchpay or Client's use of Scratchpay Payments, including but not limited to (i) discouraging Client from using Scratchpay in favor of another payment method; (ii) presenting Scratchpay in any manner that is materially less prominent than other payment methods at Provider's location(s); (iii) applying a surcharge or other additional fee on Scratchpay Payments; (iv) increasing the price of goods or services solely for purchases paid for using Scratchpay; or (v) setting any minimum or maximum amount for which Client may use Scratchpay.
1.9. Assignment of Right to Client Payments.Upon receiving confirmation through the Dashboard of an authorized Scratchpay Payment ("Authorization"), Scratchpay will have the sole and exclusive right to collect and receive payment from Client for the purchase associated with the Scratchpay Payment. After such time, Provider may not accept any payment from Client for such purchase; provided that if Provider does accept any such payment from Client, Provider must immediately notify Scratchpay via the Dashboard or [email protected], and Provider authorizes Scratchpay, in Scratchpay's discretion, to debit Provider's business (commercial - see also Section 5.2) bank account for the paid amount and/or withhold the paid amount from any subsequent Settlement. Provider will provide Scratchpay with all required information regarding Provider’s bank account in order to effectuate debits and credits in the normal course of business and for correcting any errors or chargebacks (see also Section 2 -Settlement Process).
1.10. Prohibited Transactions. Provider may not accept a Scratchpay Payment for the purpose of (i) disbursing cash or cash equivalents to Client, (ii) refinancing an existing debt with Client, or (iii) for services not yet rendered or goods not yet delivered, unless (1) such goods/services are intended to be (and are) delivered or completed within thirty (30) days of an Authorization, or (2) beyond thirty (30) days of an Authorization subject to a firm written plan detailing the scheduled dates of goods/service provision and corresponding cost to Client (a "Long Term Plan"). Scratchpay reserves the right to decline any Long-Term Plan based on its assessment and discretion.
1.11. Records. Provider shall store original documentation of the sale of goods or services related to a Scratchpay Payment for at least two (2) years from the date of the Authorization, and will promptly present such documentation upon request of Scratchpay.
1.12. Legal Proceedings. Provider will forward to Scratchpay promptly after receipt, at any time during or within three (3) years following Provider's participation in the Program, a copy of any legal proceeding or related communication relating to Scratchpay, including any Scratchpay Payment, from a Client or a governmental or regulatory authority.
2. SETTLEMENT PROCESS.
2.1. Upon receiving an Authorization, Scratchpay will remit the Settlement Amount to the Provider to the Provider's designated bank account within five (5) business days of authorization ("Settlement"). The "Settlement Amount" is the Purchase Amount less (i) any Provider Fees and/or (ii) any other amounts due to Scratchpay from Provider authorized under this Agreement, including refunds or Chargeback amounts. "Purchase Amount" means the total cost of goods or services charged to andowed Client, including any taxes, fees or other charges (which are solely Provider's responsibility to calculate and collect as required by applicable laws).
2.2. Without limiting Scratchpay's right to withhold amounts from the Purchase Amount under Section 2.1 above, Provider acknowledges that if the Purchase Amount is insufficient to cover amounts due and owing to Scratchpay under this Agreement, Provider authorizes Scratchpay, in Scratchpay's discretion, to debit the Provider's designated bank account for the amount of such deficiency.
2.3. For credits and debits to Provider's bank account authorized under this Agreement, Provider authorizes Scratchpay to (i) initiate credit entries and to initiate, if necessary, debit entries and adjustments for any erroneous credit entries, to Provider's bank account, and (ii) initiate debit entries and to initiate, if necessary, credit entries and adjustments for any erroneous debit entries, to Provider's bank account. Provider agrees not to dispute any credits or debits with its bank for any transfers authorized under this Agreement.
3.1. In the event of a Chargeback Event, Provider authorizes Scratchpay, in Scratchpay's discretion, to debit Provider's bank account for the Chargeback amount and/or withhold the Chargeback amount from any subsequent Settlement.
3.2. As determined in Scratchpay's sole discretion, a "Chargeback Event" arises:
i) Upon Scratchpay's discovery of Provider's failure to notify Scratchpay under Section 1.9, solely to the extent of the payment amount that Provider has accepted from Client.
ii) When Client notifies Scratchpay of a dispute regarding Provider's provision of any good or service paid for with a Scratchpay Payment (including the delivery or non-delivery, or performance or non-performance, of goods or services), and Provider fails to provide, within five (5) days upon request from Scratchpay, sufficient evidence (in Scratchpay's reasonable determination) that adequately refutes Client's dispute. Such evidence may include Provider's records of the description of the good or service as provided to Client; receipts indicating Client's authorization to purchase the good or service; and/or records of successful delivery or completed performance of the good or service.
4.1. If Client is eligible for a refund from Provider (including as a result of a reduction in the purchase price), Provider shall notify Scratchpay of the refund through the Dashboard or by emailing [email protected], including the amount of the refund owed to Client.
4.2. If Provider notifies Scratchpay of the refund within 30 days of the Authorization date, Provider authorizes Scratchpay, in Scratchpay's discretion, to debit Provider's bank account for the refund amount and/or withhold the refund amount from any subsequent Settlement.
4.3. If Provider notifies Scratchpay of the refund more than 30 days after the Authorization date, Scratchpay will impose the Provider Fee to execute the refund and Provider authorizes Scratchpay, in Scratchpay's discretion, to debit Provider's bank account for the refund amount plus Provider Fee and/or withhold the refund amount plus Provider Fee from any subsequent Settlement.
5. ACH AUTHORIZATION.
5.1. This Agreement governs ACH transactions initiated by Scratchpay to credit or debit Provider's bank account. By entering into this Agreement and participating in the Program, Provider authorizes Scratchpay to (i) initiate credit entries and, if necessary, debit entries and adjustments for any credit entries made in error, to Provider's bank account; and (ii) initiate debit entries and, if necessary, credit entries and adjustments for any debit entries made in error, to Provider's bank account. Scratchpay will initiate individual or recurring CCD transactions when authorized by Provider using any available method including by, but not limited to, Dashboard, phone, fax, email or written means.
5.2. Provider represents and warrants that (i) the bank account that Provider designates for such debits and credits is a commercial or business account and was not established primarily for personal, family or household use, (ii) it is bound by NACHA Operating Rules as they pertain to all ACH transactions initiated by Scratchpay that credit or debit Provider's bank account, and (iii) any ACH transaction that Provider authorizes Scratchpay to make to or from Provider's bank account is for a lawful purpose and otherwise complies with applicable law.
5.3. Provider agrees not to dispute with its bank any debits initiated by Scratchpay under this Agreement, provided the transaction corresponds to the terms of this Agreement, including Provider's instructions.
6. PROVIDER REPRESENTATIONS AND WARRANTIES.
6.1. Provider has all necessary power and authority to enter into this Agreement; has all certificates, licenses, authorizations and/or approvals to perform its obligations under this Agreement and to provide the goods and services for which a Scratchpay Payment may be applied; and that the provision of such goods or performance of such services do not violate applicable law.
6.2. There is no claim, or any litigation, proceeding, arbitration, investigation or material controversy pending, against or affecting it that will have a material adverse effect on its or Scratchpay's ability to perform its obligations under this Agreement, including the assignment to Scratchpay of the right to collect payment from a Client. To the best of Provider's knowledge, no such claim, litigation, proceeding, arbitration, investigation or material controversy has been threatened or is contemplated against it.
6.3. Any information furnished by Provider to Scratchpay is true and correct in all material respects when furnished; and Provider will immediately notify Scratchpay to update such information in the event any part of it becomes untrue or incorrect.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SCRATCHPAY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, NATURE OR DESCRIPTION, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, ERROR-FREE OPERATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE PROGRAM AND ALL SERVICES PROVIDED TO PROVIDER HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND.
8. TERM, TERMINATION AND SUSPENSION.
8.1. Provider Termination. Provider may terminate this Agreement without cause upon fifteen (15) days written notice to Scratchpay.
8.2. Scratchpay Termination. Scratchpay may terminate this Agreement (i) without cause upon fifteen (15) days written notice to Provider, or (ii) immediately if Provider (A) fails to satisfy Scratchpay's underwriting or creditworthiness requirements, (B) is no longer authorized to provide the goods or services for which Scratchpay Payments may be used, (C) is directed by a regulatory authority to cease offering the Program to Provider, or (D) Scratchpay becomes aware that Provider has been suspended or terminated from accepting payments through another payment method, provider or network including Visa, Mastercard, NACHA or PayPal, or (E) there is a significant change in Provider’s control of its business or unauthorized assignment or transfer of this Agreement.
8.3. Termination for Bankruptcy, Insolvency. Either party may immediately terminate this Agreement upon written notice to the other party if such other party becomes the subject of a voluntary or involuntary bankruptcy or insolvency petition or proceeding, or the appointment of a receiver or trustee in a liquidation nor insolvency.
8.4. Survival. Any provision of this Agreement which by its nature extends beyond the expiration or termination of this Agreement, will survive the termination or expiration of this Agreement, including (i) Sections 1.2, 1.3, 1.4, 1.5, 1.9, 1.11 and 1.12 (General Provider Obligations), 7 (Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11 (Confidentiality), 12 (Data Protection), 14 (Binding Individual Arbitration), and 15 (Miscellaneous); and (ii) any other sections, terms or conditions of this Agreement relating to a Scratchpay Payment that was Authorized prior to the effective termination date, including Sections 2 (Settlement Process), 3 (Refunds), and 4 (Chargebacks).
8.5. Suspension. Provider acknowledges and agrees that, notwithstanding anything in this Agreement to the contrary, Scratchpay may, in its sole discretion, suspend or terminate the acceptance of Scratchpay Payments by one or more (or all) Provider locations, or for one or more Scratchpay Accounts or Clients. Scratchpay may, from time to time, establish daily and/or single transaction limits relating to the permissible number and/or amount of a Scratchpay Payment that a Client may conduct at a Provider location or for a single Scratchpay Account or Client.
Provider agrees to indemnify, defend and hold Scratchpay and its affiliates, officers, directors, employees, and agents harmless from any losses, liabilities, and damages of any kind (including without limitation any costs, expenses or reasonable attorneys' fees incurred by any indemnified party) arising out of any third-party (including Client and any sponsor Bank) claim, complaint, or chargeback relating to arising from (i) any sale made by Provider, (ii) any treatment provided or the products or services sold or provided by Provider, or the advertising or promotion involving such treatment, products or services, (iii) Provider's noncompliance with this Agreement, including the failure of any representation or warranty made by Provider to be true and correct when made or deemed made, (iv) circumstances relating to Provider that create harm to or loss of goodwill to Scratchpay, (v) Provider's violation of applicable law, (vi) acts and omissions of Clients, (vii) fraud, willful misconduct, or gross negligence of Provider or Provider’s officers, directors, employees, or agents, and (viii) any infringement of Provider’s IP rights or of any third party. Should a lawsuit of any kind be filed against Scratchpay under this provision (9.Indemnification), Scratchpay in its discretion shall determine counsel that will be used including deferring to the Provider’s choice of counsel.
10. LIMITATION OF LIABILITY.
10.1. Except with respect to Provider's indemnification or payment obligations set forth in this Agreement, as well as Provider’s Confidentiality obligations in Section 11 and Provider’s willful misconduct, gross negligence or fraud, in no event shall either party be liable to the other for any indirect, special, incidental, consequential, punitive or exemplary damages (including lost profits or revenue), arising out of, in connection with, or in any way relating to, this Agreement or a party's acts or omissions under this Agreement, whether in contract, tort (negligence or strict liability), or other legal or equitable theory and regardless if such party knew or should have known of the possibility of such damages.
10.2. Scratchpay's aggregate liability for any direct damages to Provider under this Agreement will not exceed the total amount of Provider Fees paid by Provider to Scratchpay in the immediately preceding twelve (12) months from the date a Provider claim against Scratchpay first arises under this Agreement.
11.1. Except as provided below, the party receiving Confidential Information of the disclosing party shall keep confidential, and will not disclose to any third party, the disclosing party's Confidential Information, or any of the terms and conditions of this Agreement, without the prior written consent of the disclosing party. The receiving party shall take care to prevent the disclosure of the disclosing party's Confidential Information with at least the same degree of care which the receiving party takes to protect its own confidential information of a similar nature, but in any case, no less than an appropriate and reasonable degree of care.
11.2. The receiving party may disclose the disclosing party's Confidential Information to its employees, service providers or affiliates who are informed of the confidential nature of the information and have agreed to be bound by confidentiality obligations at least as stringent as those under this Agreement, and where such disclosure and/or utilization of Confidential Information is solely for the purpose of (i) performing the receiving party's obligations under this Agreement or (ii) when required to be disclosed by law or regulation or by court order or other legal authority, provided that prior to the disclosure of Confidential Information under subsection (ii), the receiving party will, as applicable, (1) notify and reasonably cooperate with the disclosing party prior to disclosure so that the disclosing party has an opportunity to seek a protective order or other relief, (2) disclose only such information as is required by the law or regulation or court order or other legal authority, and (3) use commercially reasonable efforts to obtain confidential treatment of any Confidential Information so disclosed.
11.3. A party's confidentiality obligations shall not apply to (i) information in the public domain, except where such information entered the public domain due to a breach of this Agreement, (ii) that the receiving party rightfully possessed before it received the information from the disclosing party, (iii) is furnished to the receiving party by a third party free of any obligation of confidentiality to that third party, or (iv) is developed by the receiving party wholly independent from the Confidential Information.
11.4. A receiving party agrees to return or destroy the disclosing party's Confidential Information (in any form and including all summaries, copies and excerpts) promptly following the disclosing party's request. At the disclosing party's option, the receiving party will provide written certification of its compliance with this paragraph within seven (7) days following the date of such request.
11.5. In the event of any breach of a party's confidentiality obligations, the parties agree that the non-breaching party will suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching party from any violation by the breaching party will be difficult or impossible to calculate and will therefore be an inadequate remedy. Accordingly, the parties agree that the non-breaching party may obtain temporary and permanent injunctive relief against the breaching party, in addition to any other rights or remedies that the non-breaching party may be entitled at law, in equity and under this Agreement.
11.6. No party shall obtain any proprietary rights in any Confidential Information which has been or at any time after the date of this Agreement is disclosed, directly or indirectly, to it by another person under this Agreement, except as may be expressly provided in this Agreement.
11.7. Provider may not, without Scratchpay's express written approval, issue any press release or otherwise advertise, make a public statement or disclose to any third party any information about the parties' relationship under this Agreement, the existence of this Agreement or Scratchpay Payments between Clients and Provider, except as otherwise provided for in this Agreement.
11.8. Provider acknowledges that Scratchpay owns all information concerning the Program, including Scratchpay Marketing Materials, a Client's Scratchpay Payment or related account ("Scratchpay Account") (whether collected by Scratchpay or Provider) (collectively, "Scratchpay Information"), and that Provider has no ownership rights therein. Provider shall treat such Scratchpay Information as Scratchpay's Confidential Information. For clarity, the foregoing does not prevent Provider from collecting and owning information about a Client unrelated to the Program (for example, information about a Client relating to its receipt of Provider's goods or services), and such information shall not be considered Scratchpay Information.
12. DATA PROTECTION.
12.1. Provider is fully responsible for its collection, storage, disclosure and use of, and access to, Scratchpay Information under its control or made available to it under this Agreement. Provider will prevent any collection, storage, disclosure or use of, or access to, Scratchpay Information not expressly authorized by this Agreement. Without limiting Provider's other obligations under this Agreement (including its confidentiality obligations), Provider will implement and maintain a comprehensive and effective written information security program appropriate to the nature of the Scratchpay Information that: (i) contains administrative, technical and physical safeguards to identify, assess and protect against any reasonably foreseeable anticipated or actual threats or hazards (whether internal or external) to the security or integrity of Scratchpay Information, including threats of loss, theft, unauthorized access, use, disclosure or other unauthorized processing of Scratchpay Information or any failure of security controls protecting Scratchpay Information, (ii) meets industry best practices for such safeguards, and (iii) complies with all applicable data protection and privacy laws.
12.2. Provider will monitor the sufficiency of its safeguards and review the scope of its security measures at least annually, and when Provider makes any material changes to such security measures, such review to include risk assessments, regular testing, and otherwise monitoring for the effectiveness of key controls, systems and procedures to confirm Provider's safeguards are operating in a manner that is reasonably calculated to prevent and detect unauthorized access to or use or disclosure of Scratchpay Information. Scratchpay reserves the right to review, upon request, Provider's policies, procedures and practices used to maintain the privacy, security and confidentiality of Scratchpay Information.
13. INTELLECTUAL PROPERTY.
13.1. Notwithstanding anything in this Agreement, Scratchpay owns all intellectual property rights, title and interest in and to the Program, including the Scratchpay name, trademarks, copyrights, processes, trade secrets or other such proprietary rights, any Scratchpay documentation or technology (including the Dashboard), and anything developed by Scratchpay under this Agreement.
13.2. Except for any licenses granted to Provider, nothing in this Agreement is intended to transfer or assign any such intellectual property rights to Provider. Any rights not expressly granted to Provider are reserved by Scratchpay.
13.3. Provider agrees that it will not, and will not attempt to, disassemble, decompile or otherwise reverse-engineer any software, code or other trade secret provided by Scratchpay.
13.4. Provider hereby grants Scratchpay a non-exclusive license to use its name, trademarks, logos and other marks in connection with the administration and operation of the Program, for inclusion in marketing materials relating to the Program (solely to reflect Provider's participation in the Program), and collecting or liquidating any Scratchpay Accounts.
13.5. Upon termination of the Agreement and/or Provider's participation in the Program, all licenses or other rights granted to Provider will immediately and automatically terminate and revert to Scratchpay, and Provider will immediately remove all signage, logos, marketing materials and similar displays relating to Scratchpay or the acceptance of Scratchpay Payments by Provider.
14. BINDING INDIVIDUAL ARBITRATION.
Provider and Scratchpay agree to arbitrate any claim, controversy, or dispute between Provider and Scratchpay, including any claims relating in any way to this Agreement or the Program, or any other aspect of the relationship between Provider and Scratchpay (collectively, "Disputes"). ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. PROVIDER WAIVES ANY RIGHT TO HAVE ITS CASE DECIDED BY A JURY AND ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST SCRATCHPAY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the "Arbitrator") administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. The Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement or any other agreement between the parties (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Subject to applicable jurisdictional requirements, Provider may elect to pursue its claim in its local small-claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual (non-class or non-representative) basis. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If Provider is a consumer bringing a claim relating to a transaction intended for a personal, household, or family use, any arbitration hearing will occur within the county where Provider is located. Otherwise, any arbitration hearing will occur in Los Angeles, California, unless the parties mutually agree to another location. The arbitrator's award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party's claim. An Arbitrator's decision and judgment thereon will not have a precedential or collateral estoppel effect. Scratchpay will reimburse the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this Section for all claims totaling less than $10,000 unless the Arbitrator determines that Provider's claims were frivolous. If either party prevails on any claim for which the prevailing party is legally entitled to attorney's fees, the prevailing party may seek to recover those fees from the arbitrator. For purposes of this arbitration provision, references to Provider and Scratchpay also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Program.
15.1. Changes to Program. Scratchpay may, from time to time, make changes to the Program and/or this Agreement, including Provider's access and use of the Dashboard or any Scratchpay Marketing Materials. However this Section shall be in contemplation with Section 15.8.
15.2. Force Majeure. A party will not be deemed to be in default under this Agreement, and no party will hold the other party responsible for, any interruption or delay in the performance of its obligations under this Agreement (except for Provider's payment obligations), due to earthquake, flood, fire, storm or similar natural disaster; war, terrorism or similar armed conflict; or labor strike, lockout, or boycott; pandemic, epidemic (including but not limited to Covid-19 or similar pandemics) or any other cause beyond a party’s reasonable control, whether foreseeable or not; provided that the party relying upon this paragraph must promptly give the other party written notice upon discovery of the relevant force majeure event, and will take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further that the force majeure event does not relieve the affected party from performing its other obligations to the extent not affected by such force majeure event. In the event a force majeure event extends for a period in excess of thirty (30) days, either party may immediately terminate the Agreement.
15.3. Independent Contractors. Neither party nor its employees, consultants, contractors or agents are considered agents, employees or joint ventures of the other party. Such persons do not have they any authority to bind the other party by contract or any other obligation, and each party shall ensure that such persons shall not represent to the contrary, expressly or implicitly, by appearance or otherwise, that they have any authority to bind the other party by contract or any other obligation.
15.4. Assignability. Provider may not assign this Agreement, or its rights or obligations hereunder without the prior written consent of Scratchpay.
15.5. Choice of Law and Venue. This Agreement and the rights of the parties hereunder shall be determined, governed by and construed in accordance with the laws of the State of California without regard to conflicts of laws principles. Subject to and without waiver of the arbitration provision set forth in Section 14 (other than small claims actions in consumer cases discussed therein), Disputes under this Agreement shall be resolved solely by a court having its situs within Los Angeles County, CA, and the parties consent and submit to the jurisdiction of any court located within such venue.
15.6. Attorneys' Fees and Costs. For the parties' mutual benefit, if any action is commenced to enforce or interpret, or in any way relates to this Agreement, the prevailing party is entitled to its reasonable attorneys' fees and costs.
15.7. Entire Agreement. This Agreement constitutes the entire agreement between the parties and is the final expression of the parties' understanding. No prior discussions or communications shall form any part of this Agreement, unless expressly noted herein.
15.8. Modifications. Scratchpay may, from time to time, revise the terms and conditions of this Agreement, including by revising the Pricing Schedule, and such revisions will be binding and effective on Provider upon the earlier of: written notice to Provider (if any); 30 days after posting of the revised Agreement on the Dashboard; or Provider's acceptance of a Scratchpay Payment after posting of the revised Agreement on the Dashboard. Provider agrees to periodically review the Dashboard for the posting of any revised version of this Agreement.
15.9. Construction. Headings contained in this Agreement are for convenience only and do not constitute a limitation of the Agreement terms. The singular includes the plural, and the plural includes the singular. All references to "herein," "hereunder," "hereinabove," or like words shall refer to this Agreement as a whole and not to any particular section, subsection, or clause contained in this Agreement. The terms "include" and "including" are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements.
15.10. Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the parties, and is not intended for benefit of any third party.
15.11. Notices. All notices and other communications under this Agreement shall be given in writing and shall be deemed to have been duly given and effective upon receipt if delivered in person, by recognized messenger service or by email. Any notice to Scratchpay must be sent either by mail, (i) to Scratchpay, 225 S. Lake Avenue, Suite 250, Pasadena, CA 91101, Attn: General Counsel, or (ii) by email to [email protected], Attn: General Counsel, unless a different address for notice is later provided in writing by Scratchpay.
15.12. Severability. If any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity will not render the Agreement unenforceable or invalid as a whole. In such event, the provision deemed unenforceable or invalid will be changed or interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions.
Effective September 10, 2020
For all Scratchpay Payment types, including Pay Over Time, Pay Later and Take 5:
|Segment||Provider Fee (% of total Scratchpay Payment Amount)|