This Wallit Merchant Terms of Use (this “Agreement”) is an agreement between you (“you”, “your” or “Participating Merchant”) and iMoneza, LLC, a Wisconsin limited liability company d/b/a Wallit (“Wallit”, “we” or “us”). Your use of the Wallit Services (as defined below) available through the Wallit website or mobile application (collectively and individually referred to herein as the “Site”) is subject to the terms of this Agreement, as the same may be amended or amended and restated in accordance with the terms hereof. You must read, agree with and accept all of the terms and conditions contained in this Agreement.
1. Use of Wallit Services. During the term of this Agreement, Wallit grants you (a) a limited, revocable, non-exclusive, non-assignable, non-sublicenseable right to access and use the applicable Wallit Services as it is intended to be used and in accordance with this Agreement, all policies and documentation provided to you by Wallit or made available through the Site and applicable law and (b) a limited, revocable, non-exclusive, non-assignable, non-sublicenseable license to any source and/or object code, as applicable, specifically provided to you by Wallit for the purpose of enabling use of the Wallit payment software with your Merchant Site (as defined below) (the “Wallit Additional Software”). In lieu of utilizing Wallit Additional Software, you may, or you may engage third party developers to, develop an application program interface to enable Wallit Services to be utilized through your Merchant Site (a “Third Party Wallit API”) utilizing the Developer Documentation available on the Site, in which case you and such developer, as applicable, will be bound by a separate Developer Terms of Use. You covenant and agree to comply with, and acknowledge that your continued use of the Wallit Services and Wallit Additional Software is conditioned upon your compliance with, this Agreement, all applicable Wallit policies and procedures and applicable law.
2. Wallit Services. The Site is designed to enable consumers and entities (“Users”) with an active Wallit User account meeting Wallit’s requirements (each, an “Account”) to purchase access to those certain online services and products you make available at or through your website or mobile application or those that you control (collectively, the “Merchant Site”) by use of Wallit Additional Software or a Third Party Wallit API subject to the terms and conditions set forth in this Agreement (the “Wallit Services”). You are responsible for the provision of any and all products and services you make available to Users and hereby indemnify and hold harmless Wallit and its affiliates, subcontractors, representatives, employees, agents or authorized third parties (collectively, “Wallit Representatives”), from and against claims, damages, costs, expenses (including reasonable attorneys’ fees) (collectively, “Liabilities”) arising from or in connection with your failure or that of your affiliates, subcontractors, representatives, employees, agents or authorized third parties (collectively, “Your Representatives”) to promptly provide such products and/or services, and hereby agree to promptly reimburse Wallit for any Liabilities associated therewith. You acknowledge that Wallit will not and does not make any warranties or representations regarding or otherwise guarantee any products or services offered by you or made available by you to any User and any such representations and warranties made by you or your Representatives shall be solely your responsibility.
3. Eligibility Requirements.
(a) To be eligible to use the Wallit Services, you must be either an individual that is at least eighteen (18) years old or an entity in good standing in your state of jurisdiction. If you are an individual, by agreeing to this Agreement and using the Wallit Services you certify that you are at least eighteen (18) years of age. In accordance with Federal Children’s Online Privacy Protection Act of 1998 (COPPA), we will never knowingly solicit, nor will we accept, personally identifiable information from users known to be under thirteen (13) years of age. Please see our Privacy Policy which is hereby incorporated herein by reference, for additional information or for how to notify us of any concerns you may have in this regard.
(b) Personal Information; Anti-Money Laundering. Wallit is committed to full compliance with all applicable laws and regulations regarding Anti-Money Laundering (“AML”). Wallit’s policy is to prevent people engaged in money laundering, fraud, and other financial crimes, including terrorist financing, from using Wallit’s services. To comply with OFAC (Office of Foreign Asset Control) requirements, and global sanctions, we may screen our customer accounts against government watch lists. As part of our AML procedures, we collect information from you to satisfy our Know Your Customer requirements. You authorize Wallit, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include asking you for further information, requiring you to provide your date of birth, a taxpayer identification number and other documentation and information that will allow us to reasonably identify you, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report, or verifying your personally identifiable information (“Personal Information”) against third party databases or through other sources. If you use certain Wallit Services, federal law may require that Wallit verify some of your Personal Information. Wallit reserves the right to close, suspend, or limit access to your Account and/or the Wallit Services in the event we are unable to obtain or verify this Personal Information.
(c) Authority. In the case of a Participating Merchant that is an individual, you hereby represent and warrant to Wallit that the individual entering into this Agreement is the Participating Merchant identified on the application or has a written power of attorney to bind such Participating Merchant to this Agreement and act on behalf of such individual Participating Merchant in connection herewith. In the case of a Participating Merchant that is an entity or trust, you hereby represent and warrant to Wallit that the individual entering into this Agreement has the power and authority to bind such entity to this Agreement and act on behalf of such entity in connection herewith.
(d) Jurisdiction of Use. Wallit may not be available to Participating Merchants located in all states or other jurisdictions. When you accept this Agreement, you will be asked to provide your state of residence (in the case of an individual) or your principal place of business (if any entity), as applicable. We reserve the right to deny your application to use the Wallit Services or immediately terminate this Agreement and your use of the Wallit Services if your access or your use of the Wallit Services (or any component thereof) would violate the applicable laws of the United States, the applicable laws of the state, country or other jurisdiction in which you are accessing the Wallit Services or the applicable laws of your state of residence or place of business, as applicable.
4. Termination.
(a) You may terminate this Agreement and your use of the Wallit Services with not less than thirty (30) days prior written notice to us at any time.
(b) Wallit may terminate this Agreement and your use of the Wallit Services with not less than thirty (30) days prior written notice to you at any time and, in addition to any other termination rights set forth herein, Wallit may without notice immediately terminate this Agreement and your use of the Wallit Services if:
(i) You fail to comply with the terms of, or are unable to pay or otherwise perform your obligations under, this Agreement or any policies of Wallit identified on the Site.
(ii) We decide, in our discretion, that you become ineligible for the Wallit Services because there is a high level of risk associated with your Account or have reason to believe your use of the Wallit Services violates any applicable law or is for any unlawful purpose.
(c) If this Agreement or your use of the Wallit Services is terminated for any reason, your right to access or use any Wallit Services will immediately cease. Notwithstanding any termination of this Agreement, the provisions of this Agreement that expressly survive or that by their nature survive, including, without limitation, Sections 3, 4, 5, 7, 8, 9, 10, 11, 12 and 13 shall so survive and remain in effect following termination of this Agreement for any reason.
5. Password Security. You are responsible for maintaining adequate security and control of any and all usernames, passwords, personal identification numbers (PINs), or any other codes that you use to access the Wallit Services.
6. Your Privacy
(a) General. Protecting your privacy is very important to Wallit. Please review our Privacy Policy in order to better understand our commitment to maintaining your privacy, as well as our use and disclosure of your Personal Information. Our Privacy Policy is available at www.wallit.io.
(b) Data Use. Subject to applicable law, Wallit shall have the right (i) to use any personal, financial or transaction information (collectively, “Data”) it receives from you as necessary to perform the Wallit Services; (ii) to collect and process the Data to use internally for record keeping, internal reporting, analytics, fraud detection, support purposes and purpose of investigating any claim you initiate; (iii) to compile and disclose Data in the aggregate where your individual or user Data is not identifiable, including calculating Participating Merchant averages by region or industry; (iv) to provide the Data as required by credit card companies, in order to comply with applicable law, government agency requirement or court or arbitration order, or to defend Wallit’s rights in a legal dispute; (v) with your written permission; and (vi) as otherwise permitted by our Privacy Policy.
7. Fees and Payment Procedures.
(a) Tax Matters. It is your responsibility to determine what, if any, taxes apply to the payments you make or receive through the Wallit Services, and it is your responsibility to collect, report and remit the correct tax to the appropriate tax authority. Wallit is not responsible for determining whether taxes apply to your transaction, or for collecting, reporting or remitting any taxes arising from any transaction. To assist you in facilitating the collection, reporting and remitting of taxes to the appropriate tax authorities, Wallit will make available to you at the time of its remittance of any amounts payable to you, a summary of such payments indicating the total amount paid by Users in each zip code, which area codes will be based solely upon the information provided by such Users to Wallit. You acknowledge that Wallit will report to the Internal Revenue Service on Form 1099-K the total amount of payments for goods and services we remit to you each calendar year if you receive (a) more than $20,000 in payments for goods or services and (b) Users purchase your goods or services in more than 200 transactions in the same calendar year.
(b) Merchant Fee Agreement; Fees. As a condition to this Agreement and the rights granted to you hereunder, you may be required to enter into a Merchant Fee Agreement with Wallit (as the same may be amended or amended and restated from time to time, the “Fee Agreement”). Unless otherwise indicated in the Fee Agreement, the fees indicated in the Fee Agreement, including, without limitation, setup fees, implementation fees, monthly fees and transaction fees (collectively the “Fees”), will generally be deducted from the amounts payable under Section 7(c); provided, however, in the case of setup or implementation fees, unless otherwise agreed by Wallit in writing, such Fees will only be deducted from the amounts payable, if any, under Section 7(c) in the initial month after the date you first utilize the Wallit Services; provided, further, in the case of monthly fees and transaction fees, unless otherwise agreed by Wallit in writing, such Fees will only be deducted from the amounts payable, if any, under Section 7(c) in the month in which such Fees were incurred. Notwithstanding the foregoing, if the amounts payable in the applicable month under Section 7(c) do not meet or exceed the Fees incurred in such month, then unless otherwise agreed in writing by Wallit you will be invoiced for the remaining balance. All such invoiced amounts shall be due and payable within twenty (20) days from the invoice date. You agree to reimburse Wallit for all costs or expenses incurred by Wallit in collecting any past due Fees (including, without limitation, reasonable attorneys’ fees) and you acknowledge and agree that Wallit may charge you, and you agree to pay, interest at a rate equal to the lesser of 1.5% per month (or part thereof) or the maximum legal rate permitted on any past due Fees. Except as set forth in the Fee Agreement, Fees are subject to increase in Wallit’s discretion with not less than thirty (30) days notice. Such Fee increases will automatically go into effect as of the effective date set forth on the applicable notice. All Fees are non-refundable.
(c) Payment. During the term of this Agreement, Wallit will pay you the aggregate amount of purchases of products or services from your Merchant Site made by Users through their Accounts on a monthly basis, less the aggregate amount of all applicable Fees. The date of such payment will either be the first, second, third or fourth Tuesday of each calendar month, with the exact payment date dependent upon the date of your initial use of the Wallit Services. Such payments will be made in U.S. Dollars by electronic transfers via Automatic Clearing House (“ACH”) to the bank account specified by you, which bank account may be updated from time to time in accordance with the procedures set forth in your Merchant profile. You are responsible for the accuracy of your payment bank account information and for ensuring that such information remains correct and up to date during the term of this Agreement. If such bank account information is inaccurate, Wallit may not be able to make payment to you or your payments may not be made to the bank account you intended and, in such case, Wallit is not responsible.
(d) Chargebacks; Processing. In the event of a Chargeback relating to payments to a Participating Merchant, Wallit has the right to withhold the corresponding payment to the applicable Participating Merchant or, if such payment was already made, either seek a Reversal or offset future payments to the Participating Merchant by such amount. You acknowledge that all debit or credit card funded transactions from a buyer’s Account are processed as “card not present” transactions. Under the card association rules, a buyer has different Chargeback rights for “card not present” transactions than for transactions where the buyer physically presents the card to the seller.
(e) Foreign Currencies. All payments and transactions are required to be denominated in U.S. Dollars.
(f) Processing Errors. We will rectify any processing error that we discover. If the error results in your receipt of less than the correct amount to which you are entitled, Wallit will credit your Account for the difference. If the error results in your receipt of more than the correct amount to which you are entitled, Wallit will debit the extra funds from your Account.
(g) Certain Definitions.
(i) As used herein, the term “Reversal” means Wallit reverses a payment you received because (a) it was sent to you in error by Wallit, (b) you received the payment for activities that violated this Agreement or any Wallit policy or (c) payment or reimbursement is sought from Wallit in connection with a User Chargeback arising from a payment made on your Merchant Site.
(ii) As used herein, the term “Chargeback” means a request that a buyer files directly with his or her debit or credit card company or debit or credit card issuing bank to invalidate a payment.
8. Intellectual Property Matters.
(a) “iMoneza.com”, “iMoneza”, “Wallit.io”, “Wallit”, and all logos related to the Wallit Services (the “Wallit Logos”) are either trademarks or registered trademarks of Wallit or Wallit’s licensors. You may not copy, imitate or use them without Wallit’s prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Wallit. You may not copy, imitate, or use them without Wallit’s prior written consent. All right, title and interest in and to the Site, any content thereon, the Wallit Services, the technology related to the Wallit Services, and any and all technology and any content created or derived from any of the foregoing is the exclusive property of Wallit and its licensors.
(b) You agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the software associated with the Wallit Services or the Wallit Additional Software. You acknowledge that all rights, title and interest to all such software are owned by Wallit or its licensors. Any third party software application you use on the Site is subject to the license you agreed to with the third party that provides you with such software. Wallit does not own, control nor have any responsibility or liability for any third party software application you elect to use on the Site and/or in connection with the Wallit Services. If you choose to utilize a Third Party Wallit API, Wallit is not responsible for, nor shall it have any liability in connection with, such Third Party Wallit API.
(c) You hereby grant us a worldwide, non-exclusive, transferable, sublicensable (through multiple tiers), and royalty-free right to use and display publicly, during the term of this Agreement, your trademark(s) (including but not limited to registered and unregistered trademarks, trade names, service marks, logos, domain names and other designations owned, licensed to or used by you) for the purpose of (1) identifying you as a merchant that accepts a Wallit service as a payment form, and (2) any other use to which you specifically consent.
(d) During the term of this Agreement you are granted a limited, revocable, non-exclusive, non-assignable, non-sublicenseable right to display logos provided to you by Wallit (“Wallit Logos”) on the Merchant Site solely in connection with facilitating the purchase of services or products through the Wallit Services. You may not alter, modify or change the Wallit Logos in any way, use them in a manner that is disparaging to Wallit or the Wallit Services or display them in any manner that implies Wallit’s sponsorship or endorsement. In connection with your use of the Wallit Logos you must comply with all implementation and use requirements contained in all Wallit policies and documentation accompanying the Wallit Services and made available on the Site.
9. Notices and Communications.
(a) All notices to Wallit shall be in writing and shall either be sent via (i) U.S. mail, postage prepaid, to Wallit, PO Box 569, Brookfield, Wisconsin 53008, attention: Customer Support, or (ii) electronic mail to support@wallit.io, or such other mailing address or electronic mail address as Wallit may designate by notice duly given.
(b) All notices to Participating Merchant shall be in writing and shall be sent by posting to the Site and by electronic mail to the electronic mailing address provided by you to Wallit at the time of acceptance of this Agreement, as the same may be updated in your Account profile or by your written notice to Wallit. You are responsible for keeping your electronic mail address up to date in your Account profile, and acknowledge that if Wallit sends you a Communication but you do not receive it because your primary email address on file is incorrect, is blocked by your spam filter or service provider or you are otherwise unable to receive electronic Communications, Wallit will be deemed to have provided the Communication to you. You hereby agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that we provide in connection with your Wallit account (“Account”) and your use of the Wallit Services. Communications include, but are not limited to agreements and policies you agree to (e.g., this Agreement and the Privacy Policy), including updates to such agreements or policies, disclosures, Account statements and any and all tax statements we are required to make available to you. Any Communications will be considered to be received by you within twenty-four (24) hours after the time we post it to the Site or email it to you. You may request paper copies of any records (including this Agreement) and/or withdraw your consent to receive Communications electronically and request paper notices be provided to a mailing address by providing written notice thereof to Wallit, however, if you withdraw your consent to receive Communications electronically, Wallit reserves the right to terminate this Agreement and close your Account or charge you additional fees for paper copies. Any Communications sent to you by postal mail will be considered to be received by you three (3) business days after we send it.
(c) In order to access and retain Communications, you will need (i) a current web browser that is either Internet Explorer version 11 and above or the most current version of Firefox, Chrome or Safari, in either case with cookies enabled, and (ii) a valid email address (your primary email address on file with Wallit). The minimum requirements set forth herein will be updated from time to time by Wallit and you may be required to update to a more current version of a web browser. You hereby confirm that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records.
10. Restricted Activities.
(a) Restricted Activities. In connection with your use of the Site, your Account, the Wallit Services, or in the course of your interactions with Wallit, Users, other Participating Merchants or other third parties, you will not do any of the following (each a “Restricted Activity”):
(i) Breach this Agreement or any other agreement or policy that you have agreed to with Wallit;
(ii) Violate any law, statute, ordinance, or regulation (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising);
(iii) Infringe Wallit’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
(iv) Sell counterfeit goods;
(v) Act in a manner that is defamatory, trade libelous, threatening or harassing;
(vi) Provide false, inaccurate or misleading information;
(vii) Send or receive what we reasonably believe to be potentially fraudulent funds;
(viii) Refuse to cooperate in an investigation or provide confirmation of your identity or any Personal Information you provide to us;
(ix) Control an Account that is linked to another Account that has engaged in any of these Restricted Activities;
(x) Attempt to double dip during the course of a dispute by receiving or attempting to receive funds from both Wallit and the purchaser, bank or credit card issuer for the same transaction;
(xi) Conduct your business or use the Wallit Services in a manner that results in or may result in complaints, disputes, claims, Reversals, Chargebacks, fees, fines, penalties or other liability to Wallit, Users, other Participating Merchants, other third parties or you;
(xii) Use of your Account or the Wallit Services in a manner that Wallit, credit card company or any other electronic funds transfer network reasonably believes to be an abuse of the card system or a violation of card association or network rules;
(xiii) Access your Account or open an Account from a state, country or other jurisdiction pursuant to which such access or the Wallit Services are prohibited by applicable law;
(xiv) Have the Merchant Site through which you utilize the Wallit Services hosted in a country other than the United States of America;
(xv) Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, Data or Personal Information; use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with our Site or the Wallit Services;
(xvi) Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers;
(xvii) Use the Wallit Services to test credit card behaviors;
(xviii) Circumvent any Wallit policy or determinations about your Account such as temporary or indefinite suspensions or other Account holds, limitations or restrictions, including, but not limited to, engaging in the following actions: attempting to create new or additional Account(s) when an Account has been restricted, suspended or otherwise limited; creating new or additional Accounts using information that is not your own (e.g. name, address, email address, etc.); or using someone else’s Account;
(xix) Harass our employees, agents, or Users or other Participating Merchants; and
(xx) Sell User-supplied Personal Information, such as Users’ email addresses, to any other Participating Merchant or third party, including without limitation, any of your affiliates, other than wholly owned subsidiaries.
(b) Unlawful Internet Gambling Notice. Restricted transactions as defined in Federal Reserve Regulation GG are prohibited from being processed through the Wallit Services, your Account or your relationship with Wallit. Restricted transactions generally include, but are not limited to, transactions in which credit, electronic fund transfers, checks, or drafts are knowingly accepted by gambling businesses in connection with unlawful Internet gambling.
(c) Jurisdiction of Use. When you accept this Agreement, you will be asked to provide your state of residence (in the case of an individual) or your principal place of business (if any entity), as applicable. We reserve the right to deny your application to use the Wallit Services or immediately terminate this Agreement and your use of the Wallit Services if your access or your use of the Wallit Services (or any component thereof) would violate the applicable laws of the United States, the applicable laws of the state, country or other jurisdiction in which you are accessing the Wallit Services or the applicable laws of your state of residence or place of business, as applicable.
(d) Reserves and other Protective Actions. If Wallit believes there may be a high level of risk associated with your use of the Wallit Services, Wallit reserves the right to take any or all of the following actions: (i) place a hold on payments to you, in which case Wallit will provide you with notice specifying the terms of the reserve; (ii) Wallit may take other reasonable actions we determine are necessary to protect against such risk, including contacting your customers, on your behalf, in the event that Wallit is investigating potential fraud; and (iii) request at any time, and you agree to provide, any information about your business, operations or financial condition. We reserve the right to reassess your eligibility for any Wallit Service if your information or business is different from the information you provided in your application.
11. Liability for Your Actions.
(a) You are responsible for any and all costs (including, without limitation, reasonable attorneys’ fees), expenses and other liability incurred by Wallit, Wallit Representatives (as defined below), Users, other Participating Merchant or third parties caused by or arising out of your breach of this Agreement, and/or your use of the Wallit Services in violation of this Agreement or any Wallit policies. You agree to reimburse Wallit, Users, other Participating Merchants and third parties for any and all such liabilities. As used herein, the term “Wallit Representatives” means Wallit’s affiliates, subcontractors, suppliers, representatives, employees, agents and licensors.
(b) If Wallit, in its sole discretion, believes that you may have engaged in any Restricted Activities, we may take such actions as we may deem to be necessary, proper or reasonable to protect Wallit, other Participating Merchants, Users, other third parties, or you from Reversals, Chargebacks, fees, fines, penalties and any other liability. Such actions include, without limitation, closing, suspending or limiting your access to your Account or the Wallit Services or warning other Participating Merchants, Users, law enforcement, or impacted third parties of your actions. Further, Wallit may halt, suspend, discontinue, or reverse any transaction using the Wallit Service in cases of actual or suspected fraud, violations of applicable laws or regulations, or deliberate disruptions to or interference with the Wallit Service.
(c) If you take an action or make an omission that constitutes a Restricted Activity, then in addition to the above actions you will be liable to Wallit for the amount of Wallit’s damages caused by such action or omission. You acknowledge and agree that $2,500 per such violation is presently a reasonable minimum estimate of Wallit’s actual damages considering all currently existing circumstances, including the relationship of the sum to the range of harm to Wallit that reasonably could be anticipated because, due to the nature of such violations, actual damages would be impractical or extremely difficult to calculate. Wallit may deduct such damages directly from any existing Balance in the offending Account, if applicable, or any other Account you control.
12. Disclaimers; Compliance with CAN-SPAM Act; Limitation on Liability.
(a) Linked Sites. The Site may contain links to other affiliated or independent third-party websites (“Linked Sites”), including sites of Participating Merchants. The Linked Sites are provided solely as a convenience to Users. The Linked Sites are not under our control, and we are not responsible for and do not endorse or make any representations with respect to the content or practices of the Linked Sites, including any information or materials contained on the Linked Sites. You will need to make your own independent judgment regarding your interaction with any Linked Site.
(b) Participating Merchant Goods and Services. Wallit does not and cannot review the goods or services provided by Participating Merchants, and is not in any manner responsible for any such goods or services. You acknowledge that Wallit is not undertaking any obligation or liability relating to such goods or services. You acknowledge and agree that Wallit does not guarantee access to any goods or services provided by any Participating Merchant or that Wallit Services will continue with any Participating Merchant. Access to the goods or services of a Participating Merchant may cease at any time, whether temporarily or permanently.
(c) Compliance with CAN-SPAM Act. Wallit may provide you with the email address and/or other contact information of Users that gain access to your products, services or content at your Merchant Site with Wallit Services, whether or not such access is paid or free of charge. Wallit is not responsible for compliance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act, 15 U.S.C. 103 (the “CAN-SPAM Act”) in connection with any and all such information. You are solely responsible for compliance with the CAN-SPAM Act in connection with any and all such information. You must comply with all provisions of the CAN-SPAM Act, including, but not limited to, the requirement to provide opt-out mechanisms for recipients of commercial email messages in compliance with 15 U.S.C. § 7704(a) and 16 C.F.R. § 316.5, and the prohibition on sending commercial email messages to mobile service provider email addresses without the recipient’s explicit prior consent in compliance with 15 U.S.C. § 7712 and 47 C.F.R. § 64.3100.
(d) Limitations of Liability. IN NO EVENT SHALL WE, OUR AFFILIATES, AND THE WALLIT REPRESENTATIVES BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR THE SITE, THE WALLIT SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). OUR LIABILITY, AND THE LIABILITY OF WALLIT REPRESENTATIVES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES. THE LIABILITY OF WALLIT AND THE WALLIT REPRESENTATIVES UNDER THIS AGREEMENT AND IN CONNECTION WITH THE WALLIT SERVICES WILL BE LIMITED TO THE LESSER OF: (I) ONE HUNDRED DOLLARS ($100) AND (II) THE DOLLAR VALUE OF ALL TRANSACTIONS YOU INITIATE UTILIZING THE WALLIT SERVICES WITHIN THE SIX-MONTH PERIOD PRIOR TO THE DATE THE FIRST CLAIM AROSE. TO THE EXTENT THE LIMITATIONS ABOVE ARE NOT ALLOWED BY APPLICABLE LAW, LIABILITY OF WALLIT AND THE WALLIT REPRESENTATIVES UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WALLIT AND THE WALLIT REPRESENTATIVES ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD THESE PARTIES RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, GOODWILL, OR REPUTATION, PROFITS, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM: (1) YOUR USE OF OR YOUR INABILITY TO USE WALLIT’S SITES AND SERVICES; (2) DELAYS OR DISRUPTIONS IN WALLIT’S SITES AND SERVICES; (3) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING WALLIT’S SITES OR SERVICES OR ANY SITE OR SERVICE LINKED TO WALLIT’S SITES OR SERVICES; (4) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE SITE OR WALLIT’S SERVICES OR IN THE INFORMATION AND GRAPHICS OBTAINED FROM THEM; (5) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES; (6) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT; (7) YOUR NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS USER AGREEMENT OR WALLIT’S POLICIES. WALLIT RESERVES THE RIGHT TO MODIFY ITS POLICIES AND THIS USER AGREEMENT AT ANY TIME CONSISTENT WITH THE PROVISIONS OUTLINED HEREIN. Some states do not allow the exclusion or limitation of incidental or consequential damages so the above limitations or exclusions may not apply to you.
(e) No Warranty
THE WALLIT SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WALLIT AND THE WALLIT REPRESENTATIVES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Wallit does not guarantee continuous, uninterrupted or secure access to any part of the Wallit Services, and operation of our site may be interfered with by numerous factors outside of our control. Wallit shall not be responsible for or liable to you for losses (whether arising from lost profits or otherwise) in connection with any such interference or for any failure of Users to be able to access the Wallit Services or your products or services utilizing the Wallit Services, whether due to the failure of or interruption in the services of any third party hosting provider, payment processor or otherwise. Wallit will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and debit cards are processed in a timely manner but Wallit makes no representations or warranties regarding the amount of time needed to complete processing because the Wallit Services are dependent upon many factors outside of our control, such as delays in the banking system or the U.S. or international mail service. Certain Wallit Services may not be available to you based on residency, geographic location or other eligibility criteria. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. This paragraph gives you specific legal rights and you may also have other legal rights that vary from state to state.
13. General Provisions.
(a) Indemnification. You agree to indemnify and hold harmless Wallit and the Wallit Representatives from and against any and all losses, damages, judgments, liabilities and costs (including reasonable attorneys’ fees) incurred by Wallit and any Wallit Representatives in connection with any claim or action arising out of, based on, or in connection with your (or Your Representatives’) access to or other use of the Site or the Wallit Services. Wallit reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
(b) Entire Agreement. This Agreement and the Fee Agreement constitute the whole agreement between you and Wallit with respect to the Site and the Wallit Service, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and us with respect thereto.
(c) Amendment. This Agreement may be amended or amended and restated by Wallit with notice of the amendment or amended and restated version of this Agreement provided at least ten (10) days prior to its effective date and by posting the amendment or restated version on the Site. The amendment or restatement will be effective as of the effective date stated thereon and your continued use of the Site and the Wallit Services following such amendment or restatement will mean that you accept and agree to such amendment or restatement, as applicable.
(d) Governing Law; Venue. You agree that all matters relating to your access to or use of the Site and the Wallit Services, including all disputes, will be governed by the laws of the United States and by the laws of the State of Wisconsin without regard to its conflicts of laws provisions. You agree to the exclusive personal jurisdiction by and exclusive venue in the State and Federal courts in Milwaukee, Wisconsin for all disputes arising out of your use of the Site, the Wallit Services and this Agreement, and waive any objection to such jurisdiction or venue.
(e) Statute of Limitations. You agree that, regardless of any statute or law to the contrary, any claim you may have under this Agreement must be brought within one (1) year after the cause of action arises, or such claim or cause of action is forever barred.
(f) Severability. If a provision or portion thereof of this Agreement is held to be illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall apply only to such provision and shall not in any manner affect or render illegal, invalid, or unenforceable any other provision of this Agreement, and that provision and this Agreement generally shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the parties expressed in this Agreement.
(g) Force Majeure. Wallit and the Wallit Representatives shall not be liable for any failure or delay in performance under this Agreement which might be due to strikes, shortages, riots, insurrection, fires, flood, storm, explosion, acts of God, war, government action, inability to obtain delivery of parts, supplies or labor, labor conditions, earthquakes, acts of terrorism, acts or omissions of third parties or any other cause which is beyond the reasonable control of such party.
(h) Assignment. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without the prior written consent of Wallit. Wallit reserves the right to and may assign this Agreement, in whole or in part, to any third party, without notice to or consent from you. Any purported or attempted assignment or other transfer or delegation in violation of this Section shall be null and void.
(i) No Waiver. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
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