Effective Date: March 11, 2024
Status: Superseded — replaced by Bankful MSA 241202, then Bankful MSA_V2_010225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 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 upon mutual consent.
By signing this agreement, Merchant authorizes EMB to obtain a credit report or other account verification for lawful purposes. If Merchant does not meet qualifications, the application may be declined.
Limited License. EMB grants Merchant a perpetual, revocable, worldwide, nonexclusive, non-sublicensable, non-transferable license to use Bankful Software, subject to:
- obligations and restrictions in this Agreement;
- use only by Merchant’s employees/contractors for collecting payments on Merchant’s behalf;
- use solely to perform the agreed functions in compliance with this Agreement;
- treating Bankful Software as EMB’s Confidential Information.
Limitations on Rights Granted. Merchant shall not disassemble, decompile, reverse engineer, or prepare derivative works of Bankful Software. Merchant may not rent, lease, assign, sublicense, transfer, modify, or time share the Bankful Software except as expressly authorized.
Independent Contractors. The relationship of EMB and Merchant is that of independent contractors. Neither party is an agent, employee, or partner of the other.
Compliance with Laws. Merchant agrees to comply with rules of Visa, MasterCard, Discover, American Express, ACH, and all applicable laws. Merchant bears sole responsibility for card processor authorizations, customer authorizations, credits, returns, disputes, and transmitting accurate data.
Authorizations. Merchant must obtain and retain ACH/credit card authorizations from each customer. Merchant authorizes EMB to deposit funds into Merchant’s account and debit for fees as described herein.
SECTION TWO – THE BANKFUL SOFTWARE
2.01 Providing Bankful Software. EMB shall use commercially reasonable efforts to provide Bankful Software in an uninterrupted and error-free fashion. Outages may occur. EMB is not liable for interruptions, including those caused by vendors.
SECTION THREE – PAYMENT OF FEES
Fees in General. Merchant shall pay fees to EMB as set forth herein, in the Merchant’s application, Fee Schedule, EMB’s website, or otherwise disclosed.
Fees for Bankful Software. Fees vary by program. Merchant may only be enrolled in one program at a time. US Merchant fees are deducted from bank accounts or via credit card authorization. International Merchant fees are deducted via credit card. EMB deducts fees automatically on the 5th of each month for prior month’s services. Late fees accrue at 1% monthly or maximum allowed by law. Merchant has 60 days to dispute fees. Refunds may incur a $50 USD wire fee if requested by wire.
SECTION FOUR – TERM AND TERMINATION
4.01 Term. One (1) year initial term, auto-renewed yearly unless either party gives 30 days’ notice.
4.02 Default. Either party may terminate if the other breaches and fails to cure within 30 days, or enters bankruptcy/insolvency proceedings.
4.03 Termination by EMB. EMB may terminate for any reason with one (1) day notice.
4.04 Effect of Termination. Merchant’s license ends immediately; use must cease; all copies destroyed or returned; Merchant must certify destruction/delivery; and all unpaid fees must be paid.
SECTION FIVE – OBLIGATIONS
Confidential Information. Each party may disclose confidential information. Receiving party must protect it, use only as authorized, restrict disclosure, and exercise reasonable care.
Indemnification. Merchant agrees to indemnify, defend, and hold harmless EMB from any losses or claims arising from Merchant’s breach, negligence, misrepresentation, or legal violations.
Disclaimer of Warranties. THE BANKFUL SOFTWARE IS PROVIDED “AS IS.” ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED.
Fraud/Risk Services. Fraud Shield tools offer no guarantee against fraud or chargebacks. Merchant is solely responsible for risk assessment and settings.
Limitation of Liability. EMB IS NOT LIABLE FOR CONSEQUENTIAL OR INDIRECT DAMAGES. TOTAL LIABILITY SHALL NOT EXCEED FEES PAID IN THE PRIOR SIX (6) MONTHS.
Taxes. Merchant is responsible for paying all applicable taxes and duties.
Merchant Representations. Merchant has full authority, is validly organized, authorized, and in good standing, and this Agreement is enforceable.
Trademarks. EMB grants Merchant a limited, nonexclusive right to use EMB trademarks during the Agreement term solely with Bankful Software.
Intellectual Property. Each party retains its IP. EMB owns Bankful Software. No implied licenses are granted.
Data Security Compliance. Merchant must comply with PCI DSS and all applicable laws. Merchant must ensure subcontractors also comply. EMB may audit upon notice.
Data Accuracy. Merchant warrants that all data provided to EMB is accurate, authorized, and timely. Merchant must update records regularly.
Merchant Account Services. Any merchant account services are governed by separate agreements.
SECTION SIX – GENERAL PROVISIONS
Severability. If any provision is invalid, others remain in force.
Drafting. No clause is construed against a party due to authorship. Jointly prepared.
Waiver. No waiver unless in writing. Waiver of one breach is not waiver of others.
Assignment. Merchant may not assign without EMB’s written consent. EMB may assign freely.
Amendments. EMB may amend by posting a new version in Merchant Portal. New versions replace prior versions. Merchant has 30 days to terminate if disagreeing with new pricing.
Notices. Notices must be in writing and delivered personally, by fax (confirmed by mail), or by first-class mail.
Section Headings. Headings are for convenience only.
Entire Agreement. This Agreement supersedes all prior agreements, oral or written. It benefits only the parties and their successors/assigns.
Governing Law; Arbitration. Governed by California law. All disputes resolved by binding arbitration through AAA, on an individual basis (non-class). Jury trial rights are waived.
Jurisdiction; Venue. California courts have exclusive jurisdiction for enforcement. Each party submits to that jurisdiction and venue.
Attorney’s Fees. Prevailing party recovers reasonable attorneys’ fees and costs.
Use of Merchant Name and Logo. Merchant grants EMB a limited right to use Merchant’s name/logo for identification purposes during the term.
Survival. Representations, covenants, warranties, and specified sections survive termination.