Effective Date: December 24, 2024
Status: Superseded — replaced by Bankful MSA_V2_010225
Version History Disclaimer
This Agreement is provided for reference as part of Bankful’s version history archive.
The applicable Fee Schedule and Addendums are intentionally omitted.
Only the most current version presented in the Merchant Portal at the time of acceptance is legally binding.
BANKFUL SOFTWARE AGREEMENT
This Bankful Software Agreement (“Agreement”) is made effective as of the date set forth below by and between eMerchantBroker.com LLC, DBA Bankful, a California limited liability company (“EMB”) whose principal place of business is 2985 E. Hillcrest Drive, Suite 209, Thousand Oaks, California 91362 and the entity and/or individual who enters into this Agreement as set forth below or on any application form (“Merchant”).
This Agreement sets out the terms and conditions under which Merchant may utilize the Bankful Software as defined below. By clicking on the “I AGREE” button at the end of this Agreement or by continuing to use the Bankful Software, it becomes a legally binding contract. Merchant acknowledges and agrees that:
- (i) it has reviewed and understands the Agreement;
- (ii) it agrees to be legally bound by the terms and conditions of the Agreement; and
- (iii) its use of the Bankful Software and any related products or services will be governed by this Agreement.
If Merchant does not agree or is not willing to be bound by the terms and conditions of this Agreement, Merchant should not click on the “I AGREE” button and should not seek to obtain or use the Bankful Software.
RECITALS
WHEREAS, EMB provides point of sale software (payment gateway), account updater services, tokenization, fraud screening, and related goods and services as further described in the applicable Fee Schedule (not published in this version history) (the “Bankful Software”); and
WHEREAS, EMB wishes to provide Bankful Software to Merchant so that Merchant may utilize Bankful Software.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
SECTION ONE – SERVICES PROVIDED BY EMB
Services. EMB will provide the portions of the Bankful Software as set forth in the applicable Fee Schedule (not published in this version history). EMB and Merchant shall agree upon the services to initially be provided under this Agreement and may update, amend, and change the goods and services provided to the Merchant upon the mutual consent of EMB and Merchant. By signing this agreement, you authorize us to obtain a credit report or other report or account information from credit or information service agencies to help verify the information you provide in this application, for consideration of other accounts and services, and for any other lawful purpose. If your information does not meet certain qualifications, you will not be able to proceed with your application at this time.
Limited License. EMB hereby grants to Merchant a perpetual, revocable (but only as provided herein), worldwide, nonexclusive, non-sublicensable, and non-transferable license, under intellectual property rights owned or licensed by EMB, to use Bankful Software provided however that:
- such license is subject to all obligations and restrictions imposed on Merchant in this Agreement;
- such license extends only to Merchant’s employees and contractors, but only to the extent that such employees and contractors use Bankful Software for the sole purpose of collecting payments on behalf of Merchant, and for no other purpose whatsoever;
- such license extends only to Merchant use of Bankful Software solely to perform the functions specified herein, and in compliance therewith; and
- while exercising such license, Merchant shall treat Bankful Software as EMB’s Confidential Information under this Agreement.
Limitations on Rights Granted. Except as expressly provided to the contrary in this Agreement, Merchant shall not, and shall not knowingly cause or permit any non-party, to use or reproduce Bankful Software. Merchant shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share Bankful Software, or otherwise apply any procedure or process to Bankful Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for Bankful Software or any algorithm, process, procedure or other information contained in Bankful Software. Except as expressly authorized herein, Merchant may not rent, lease, assign, sublicense, transfer, modify, alter, or time share the Bankful Software.
Independent Contractors. The relationship of EMB and Merchant is that of independent contractors. Neither Merchant nor its employees, consultants, contractors, or agents are agents, employees, partners, or joint ventures of EMB, nor do they have any authority to bind EMB by contract or otherwise to any obligation.
Compliance with Laws. Merchant will comply with the rules and regulations of Visa, MasterCard, Discover, American Express, and all other such associations and all applicable international, national, state, regional, and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Bankful Software. Merchant agrees to comply with any Automated Clearing House rules applicable to automatic and electronic transfer of funds including without limitation, laws, regulations, and rules governing correct authorizations by consumers and businesses, disclosures, and notices required in connection with electronic funds transfer, and all necessary waivers and releases. Merchant has the sole responsibility to verify EMB’s list of merchant card processors to be used under terms of this Agreement to determine if EMB can properly transmit the necessary credit card information to Merchant’s credit card processor. Merchant acknowledges that EMB’s list can be modified from time to time and must be verified by Merchant prior to being set up with EMB. Merchant has the sole responsibility for obtaining the proper authorization from Merchant’s own credit card processor and/or settlement bank to be able to use Merchant’s merchant account for key entry transactions and transactions being processed over the internet or online. Merchant shall be solely responsible for credits, returns, disputes, and all costs associated with data transmissions. Merchant will be solely responsible to obtain accurate credit card and ACH information and authorization from its customers and will transmit said information to EMB via the internet or service originally agreed upon by all parties.
Authorizations. Merchant will obtain from each participating consumer or business the required ACH and necessary credit card information in proper form authorizing automatic debits to such consumer or business bank account to transfer payment amounts to Merchant’s bank deposit account. Merchant warrants that Merchant will properly warehouse all authorizations obtained from consumers or businesses and will provide such authorizations for inspection upon request by EMB or any regulatory body governing these types of transactions. Merchant hereby authorizes EMB to make direct deposit of payments from consumer or business bank accounts and to debit Merchant for fees and other charges as set forth herein.
SECTION TWO – THE BANKFUL SOFTWARE
2.01. Providing Bankful Software. During the term of this Agreement, EMB shall provide the Bankful Software and use its commercially reasonable efforts to provide the Bankful Software and maintain them in an uninterrupted and error-free fashion consistent with its practices in effect as of the date of this Agreement. However, the parties acknowledge that the Bankful Software is computer network-based services which may be subject to outages and delay occurrences. In such an event, EMB shall use its commercially reasonable efforts to diligently and promptly remedy any and all material interruptions. EMB will not be liable in any manner for any interruptions, outages, or other delay occurrences relating to the Bankful Software including any attributed to EMB’s vendors.
SECTION THREE – PAYMENT OF FEES
Fees in General. Merchant shall pay fees to EMB as set forth herein, in the application for the Bankful Software, as set forth in the applicable Fee Schedule (not published in this version history), as set forth on EMB’s website and as disclosed to Merchant in any other documents or materials by EMB.
Fees for Bankful Software. Merchant’s fees will differ depending on the program and services selected and used by Merchant. Merchant can only be enrolled in one program at a time. Merchant agrees to pay EMB for the Bankful Software as set forth in the applicable Fee Schedule (not published in this version history). United States (US) Merchant fees will be deducted via Merchant’s bank account as provided in Addendum A and/or via credit card as provided in the Credit Authorization Form. International Merchant fees will be deducted via credit card provided in Addendum B. Merchant shall provide EMB with all necessary bank account, routing, and related information. EMB will deduct automatically all such fees and charges on the first Thursday of each month for the preceding month’s services. Interest shall accrue at the lesser of 1.0% per month or the maximum amount permitted by applicable law (“Late Fee”) for any fees that remain unpaid beyond any due dates. In the event of a dispute made in good faith as to the amount of fees, Merchant agrees to remit payment on any undisputed amount(s); and the Late Fee shall not accrue as to any disputed amounts unless not paid within thirty (30) calendar days after said dispute has been resolved by both parties. Merchant shall have sixty (60) days from the payment by Merchant of any fees due under this Agreement to notify EMB of any errors in payment of fee by Merchant. If Merchant does not notify EMB within the sixty (60) day time period, Merchant shall be deemed to have accepted without question such fee payment and may not in the future contest the amount Merchant paid or seek reimbursement for any discrepancies. Upon receipt of notice, EMB shall have thirty (30) days to correct any errors. In the event that EMB is required to issue a refund to Merchant, Merchant agrees to pay EMB a wire fee of fifty dollars ($50 USD) if Merchant chooses the wire option, or Merchant can choose to accept a credit on the account which will be applied to the next billing cycle.
SECTION FOUR – TERM AND TERMINATION
4.01. Term. The initial term of this Agreement shall be for a period of one (1) year, commencing on the date first set forth below. This Agreement shall thereafter be automatically renewed for additional terms of one (1) year each unless either party notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew this Agreement.
4.02. Default. Either party shall have the right to terminate this Agreement at any time if:
(i) the other party breaches any of the provisions of this Agreement and fails to cure such breach within thirty (30) days of its receipt of written notice thereof from the non-breaching party; or
(ii) the other party (a) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (b) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or assignment or composition for the benefit of creditors.
4.03. Termination by EMB. EMB may terminate this Agreement for any reason, or no reason at all, by providing Merchant with one (1) day notice.
4.04. Effect of Termination. Upon termination of this Agreement: (a) Merchant’s license to use the Bankful Software shall be automatically and immediately revoked; (b) Merchant shall immediately stop using such Bankful Software and shall either destroy or deliver to EMB any originals and copies of the Bankful Software in Merchant’s possession, custody or control or in the control of any entity or individual to which Merchant has provided the Bankful Software; (c) Merchant shall provide to EMB a written certification of such destruction or delivery, signed by an authorized agent of Merchant; and (d) Merchant shall promptly pay to EMB all fees and charges accrued and unpaid through the effective date of the termination.
SECTION FIVE – OBLIGATIONS
Confidential Information. The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Bankful Software and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure; (ii) becomes public knowledge after disclosure other than by breach; (iii) was known by the receiving party prior to disclosure; or (iv) is independently developed by the receiving party. As a condition to receipt, the receiving party shall maintain confidentiality, use it only as necessary under this Agreement, limit disclosures, and exercise a reasonable standard of care to prevent disclosure.
Indemnification. Merchant agrees to indemnify, defend, and hold harmless EMB, its employees, or agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees, and cost of defense) they may suffer or incur as a result of: (i) Merchant’s noncompliance; (ii) false or misleading representations; (iii) negligence; (iv) unauthorized warranties; or (v) violations of association rules or laws.
Disclaimer of All Warranties. THE BANKFUL SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. EMB DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Fraud/Risk Services. Merchant understands and agrees that Bankful’s Fraud Shield tools provide no guarantee against fraud or chargebacks. Merchant is solely responsible for risk assessment and settings.
Limitation of Liability. EMB SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR EXEMPLARY DAMAGES. UNDER NO CIRCUMSTANCES SHALL EMB’S TOTAL LIABILITY EXCEED AMOUNTS PAID BY MERCHANT UNDER THIS AGREEMENT IN THE PRIOR SIX (6) MONTHS.
Taxes. Merchant shall pay, indemnify, and hold EMB harmless from any sales, use, excise, import or export, value-added, or similar tax or duty, other than taxes on EMB’s income.
Merchant Representations and Warranties. Merchant represents that it has authority, is validly organized, authorized, and in good standing, and can perform under this Agreement.
Trademarks. EMB grants Merchant a nonexclusive right to use EMB’s trademarks solely during the term of this Agreement in conjunction with Bankful Software. No ownership rights are transferred.
Intellectual Property. Each party retains all rights, title, and interest in its Intellectual Property. EMB retains ownership of Bankful Software.
Data Security Compliance. Merchant agrees to comply with PCI DSS and all applicable laws governing cardholder data, and to ensure subcontractors also comply. EMB may audit compliance upon notice.
Data Accuracy. Merchant warrants that all data and entries delivered to EMB will be accurate, authorized, and timely. Merchant shall update collection data as needed.
Merchant Account Services. If Merchant applies for merchant account services, such services shall be governed by a separate agreement.
SECTION SIX – GENERAL PROVISIONS
Severability. If any provision is found unenforceable, the remaining provisions continue in full force.
Drafting. No provision shall be construed against a party solely because that party drafted it. Agreement is jointly prepared.
Waiver. No waiver or consent shall be binding unless in writing and signed. A waiver of one breach is not a waiver of subsequent breaches.
Assignment. This Agreement binds successors and assigns. Merchant may not assign without EMB’s written consent. EMB may assign at its discretion.
Amendments. EMB may amend this Agreement by posting a new version in the Merchant Portal. The new version replaces the prior version in full.
Notices. All notices shall be in writing and delivered personally, by fax (confirmed by mail), or by first-class mail to the addresses specified.
Section Headings. Headings are for convenience only and do not affect interpretation.
Entire Agreement. This Agreement, including all schedules, exhibits, and attachments, is the entire agreement and supersedes prior understandings. It benefits only the parties hereto.
Governing Law; Waiver of Jury Trial; Arbitration. This Agreement shall be governed by California law. All disputes shall be resolved by binding arbitration under AAA rules, on an individual basis (non-class). The arbitration shall be held in California. Rights to jury trial and class action are waived.
Jurisdiction; Venue. Any court enforcement shall be in California. Each party submits to exclusive jurisdiction and venue there.
Attorney’s Fees. Prevailing party in litigation or arbitration shall recover reasonable attorneys’ fees and costs.
Use of Merchant Name and Logo. Merchant grants EMB a nonexclusive right to use Merchant’s name and logo for customer identification purposes during the term.
Survival. All representations, covenants and warranties, and specified sections (3.01, 3.02, 4.04, 4.05, 5.01–5.11, 6.01–6.13) survive termination.