Effective: April 22, 2021
“Account” means an account that you establish to make and receive payments that complete transactions to purchase goods or services using the Payment Service.
“Merchant” means a seller of goods or services that you have decided to transact with, which has registered with BubblePay and has a BubblePay-enabled Account.
“Payment Data” includes any payment information provided in connection with the Payment Service, including the unique payment card number that identifies the issuer and the particular cardholder account numbers or related data, (e.g. billing address) for credit and debit card payments.
“Processor” means Stripe and any other third party payment applications, gateways, processors and service providers we may contract with to store, process, or transmit Payment Data as part of authorization or settlement of your purchase transactions.
“Payment Service” means the feature of the Site designed to (i) establish payment accounts and (ii) collect and transmit Payment Data to a payment processor to help you complete your payments to Merchants.
“Stripe” means Stripe, Inc., an authorized agent of one or more financial institutions in United States and organized under the laws of California.
“Transaction Data” means the data provided by you or Merchants to facilitate a transaction and the metadata associated with that data (such as purchase history, sender and recipient names, email and shipping addresses and Message-related identifiers) and maintained by BubblePay in order to, among other things, initiate order processing, establish the digital audit trail required to verify compliance, respond to User inquiries, draft receipts, and manage the daily operations of BubblePay.
“User” means a person that registers with and has a BubblePay-enabled Account.
“You” or “your” means the person that uses the Payment Service to make a payment that results in a debiting or charging of an amount to such person’s payment instrument and the crediting of funds to Merchants; and/or accepts a payment transaction that results in a crediting of funds to such person and the debiting or charging of an amount to Users.
2. THE PAYMENT SERVICE
2.1 Our Role. The Payment Service lets you establish an Account to allow you to make and receive payments that settle your transactions with Merchants. You must be at least 18 years old and located in the United States to establish an Account. BubblePay is not a bank and we do not offer banking services. We may use the services of one or more Processors. We are not a selling agent in connection with any purchase by you of goods or services from any Merchant. Except for our limited role in transmitting your Payment Data to complete payments that you authorize or initiate, neither BubblePay nor its affiliates is a party to your purchase transactions or involved in any underlying transaction between you and any Merchant using the Payment Service. We have no control over the quality, fitness, safety, reliability, legality, or any other aspect of any good or service that you may purchase using the Payment Service.
2.2 Processor’s Role. Processor’s Role is to accept and process credit card, debit card and other types of payments (collectively “Cards”) with respect to your purchase transactions using the Payment Service. Your purchase transactions are carried out by Processor as an agent of a financial services provider under Processor’s separate terms (the “Processor Terms”). For transactions completed by Stripe, the Processor Terms include the Stripe Connected Account Agreement, the United States Stripe Services Agreement and the applicable Financial Services Terms, and the Payment Terms (collectively, the “Stripe Terms”). By accepting this Agreement, you are also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between you and Processor.
BubblePay’s use of Processor’s services is governed by BubblePay’s separate agreements with Processor. BubblePay is not a party to the Processor Terms and is not liable to you under them.
By accepting this Agreement and the Processor Terms you are agreeing that you may be required to create, and that you will allow us to create on your behalf, an account with the Processor to process and settle your purchase transactions using BubblePay. We reserve the right to change Processors, subject to the terms of our agreement with Processor. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement will control, except in the event of any inconsistency between this Agreement and the Processor Terms concerning the processing and settling of your purchase transactions or your account with the Processor, in which case the Processor Terms will control.
2.3 Transaction Data and Payment Data. You acknowledge and agree that BubblePay will own, control, and maintain any Transaction Data provided to facilitate transactions using the Payment Service, and that BubblePay may store, process and transmit such Transaction Data to facilitate your future transactions with Merchants. Payment Data is solely held by Processor. BubblePay does not store Payment Data.
2.4 Your Authorization. You may use your BubblePay Account to store information about your Cards with Processor and to authorize Processor to complete transactions to purchase goods and services from any Merchant that accepts the Payment Service using the stored Card information. Your authorization permits Processor to hold, receive and send funds in accordance with your payment instructions, whether provided through us in our capacity as an agent for Merchants or other sellers of goods or services, or directly to Processor. Your authorization permits Processor to debit or credit your Cards or any other payment method Processor accepts.
When you instruct Processor to pay Merchant using the Payment Service, you authorize and order us to commit your payment (less any applicable fees or other amounts we may collect under our agreement with Merchant) to that Merchant. The actual payment will not be completed until the Processor processes your payment authorization. The payment authorization will be held with Processor until the transaction is completed. We may limit the Merchant’s ability to use or withdraw the funds for a period of time we have agreed to with the Merchant. Your authorizations will remain in full force and effect while you maintain your BubblePay-enabled Account.
3. PAYMENT PROCESSING
3.1 To facilitate payments, you will be required to provide certain information, among other things: your name or other identifying information, Payment Data, an appropriate payment authorization if applicable, and any other information a Merchant or Processor requires of you to send the payment. In order to use the Payment Service, you must provide current, complete, and accurate information and maintain it as current and accurate. As set forth in the Processor Terms, you authorize Processor to process and transmit your Payment Data for the purpose of processing your payment and completing your purchase from Merchant. BubblePay maintains Transaction Data but does not store Payment Data.
3.2 You acknowledge and agree that your purchases are transactions between you and Merchant, and not with BubblePay or any of its affiliates. You acknowledge that BubblePay does not control the payment methods made available by Processor through the Payment Service nor the products or services that are offered by Merchants, and BubblePay cannot ensure that a Merchant will complete a transaction or is authorized to do so. The Processor and Merchant are independent contractors and not agents or employees of BubblePay or its affiliates.
3.3 You acknowledge and agree that you are responsible for ensuring that your payments comply at all times with all applicable federal, state, and local laws and regulations and all rules imposed by Processors, including the card network rules. You agree that you will not initiate payments that violate the laws of the United States or any other jurisdiction.
3.4 We may delay, suspend or reject your payment for any reason, including without limitation if we suspect the transaction subjects us to financial or security risk or is unauthorized, fraudulent, suspicious, unlawful, in violation of the terms of this Agreement, subject to dispute, or otherwise unusual.
4. NO WARRANTY; DISCLAIMERS
THE PAYMENT SERVICE IS PROVIDED “AS-IS”, “AS AVAILABLE” AND, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. BUBBLEPAY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BUBBLEPAY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE EFFECTIVENESS OR VALIDITY OF ANY PAYMENTS, REGARDING THE TRANSACTIONS SOUGHT TO BE EFFECTED BY ANY PAYMENTS OR MESSAGES, OR THAT THE FUNCTIONS CONTAINED IN THE PAYMENT SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. BUBBLEPAY IS NOT RESPONSIBLE FOR ANY PAYMENT SERVICE INTERRUPTIONS, OR DELAY OR MISDELIVERY OF A PAYMENT, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENTS USING THE PAYMENT SERVICE.
5. RELEASE AND COVENANT NOT TO SUE
You acknowledge and agree to release BubblePay and its affiliates, and their respective employees, officers, directors, agents, and representatives (each a “BubblePay Party” and collectively “BubblePay Parties”) from all claims, demands, and damages (actual and consequential) arising out of or in any way connected with a dispute that may arise between you and Merchant and/or you and a Processor for use of the Payment Service (“Payments Disputes”), and you hereby covenant and agree that you will not sue or bring or assert any action, claim or cause of action in any jurisdiction or forum against any BubblePay Party arising from or relating to a Payments Dispute. You stipulate and agree that BubblePay Parties may plead this Agreement as a complete defense and bar to any Payments Disputes released by this Section 5, and in such event, the party bringing such barred action, claim or demand will indemnify and hold the BubblePay Parties harmless from and against any and all costs and expenses arising therefrom (including reasonable attorneys’ fees and expenses incurred in connection therewith).
6. LIMITATIONS OF LIABILITY; FORCE MAJEURE
6.1 IN NO EVENT SHALL BUBBLEPAY BE RESPONSIBLE OR LIABLE TO YOU UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, WORK STOPPAGE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH THE PAYMENT SERVICE, OR ANY GOODS, SERVICES, OR INFORMATION PURCHASED, RECEIVED, SOLD OR PAID FOR BY WAY OF THE PAYMENT SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF BUBBLEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. IN NO EVENT SHALL BUBBLEPAY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE PAYMENT SERVICE, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED ONE-HUNDRED DOLLARS ($100.00 USD) OR THE EQUIVALENT IN LOCAL CURRENCY. The limitation of liability reflects the allocation of risk between BubblePay and you. The limitations specified in this section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
6.2 BubblePay will have no liability for any failure or delay resulting from any condition beyond its reasonable control, including but not limited to, governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances.
7. GOVERNING LAW
This Agreement is governed by the laws of the State of New York without respect to its conflict of laws provisions. For purposes of determining the governing law, the parties agree that BubblePay is the proponent of this Agreement. Notwithstanding the parties’ agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in New York, New York, as necessary to protect the party's rights or property pending the completion of arbitration. The parties submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in New York, New York.
8. MANDATORY ARBITRATION
8.1 General. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PAYMENT SERVICE WILL BE RESOLVED BY BINDING ARBITRATION CONDUCTED BEFORE ONE ARBITRATOR, RATHER THAN IN COURT. The arbitration will be administered by the Judicial Arbitration and Mediation Services http://www.jamsadr.com/ (”JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”). Either party may initiate the arbitration. The arbitration will be conducted in New York, New York, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Payment of all fees will be governed by JAMS Rules.
8.2 No Class Actions. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND MAY NOT BE CONSOLIDATED WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY AND CANNOT BE BROUGHT AS A CLASS ACTION. If a court decides that this subsection on “No Class Actions” is not enforceable or valid, then this entire Section 8 (Mandatory Arbitration) will be null and void. But the remainder of this Agreement will still apply.
9. E-SIGN DISCLOSURE AND CONSENT
9.1 BubblePay may communicate with you regarding the Payment Service by means of electronic communications, including (a) sending electronic mail to the email address Merchant or you provided for a payment transaction, or (b) posting notices or communications on the Site or any other BubblePay website, or (c) other reasonable means. You agree that BubblePay may communicate with you by means of electronic communications the following: this Agreement (and revisions and amendments), notices or disclosures regarding BubblePay, and any other matter relating to your use of the Payment Service.
9.2 For those communications or records that BubblePay is otherwise required under applicable law to provide in a written paper form to you, you agree that we may provide such communications or records by means of electronic communications. The following additional terms will apply to such electronic communications: (a) you may contact BubblePay through the Site to request another electronic copy of the electronic communication without a fee; (b) you may request a paper copy of such an electronic communication, and BubblePay reserves the right to charge a fee for such paper copy; (c) you may contact BubblePay through the Site to withdraw consent to receive electronic communications; and (d) we reserve the right to terminate your use of the Payment Service if you decline or withdraw consent to receive electronic communications from BubblePay.
9.3 Notice to BubblePay may be made by mail to: BubblePay Attn: Legal, 221 River Street, Suite 9047, Hoboken, NJ 07030.
The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement does not waive that party’s right to demand strict compliance in the future, and will not be interpreted as a replacement of this Agreement.
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
BubblePay will have the right, in its sole and absolute discretion, to change, modify, or amend any portion of this Agreement at any time by posting notification on the Site or otherwise communicating the notification to you. The changes will become effective, and will be deemed accepted by you, after the initial posting and will apply to payment transactions initiated after the posting date. In the event that you do not agree with any such modification, your sole and exclusive remedy is to discontinue your use of the Payment Service.
13. ENTIRE AGREEMENT
This Agreement, which includes the language and paragraphs preceding Section 1, is the final, complete, and exclusive expression of the agreement between these parties regarding the Payment Service provided under this Agreement. This Agreement supersedes, and the parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to BubblePay under this Agreement, representations, proposals, understandings, and negotiations with respect to the matter hereof and apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.