This ACHQ Embed Platform Agreement (“Agreement”) is a legally binding agreement between you and ACHQ, Inc. (“ACHQ”) and applies to your use of the ACHQ Platform Services, as defined in this Agreement.
It is important that you read and understand this Agreement as it governs your use of the ACHQ Platform Services. You represent and warrant that you have the authority to accept this Agreement on behalf of the legal entity you have registered at www.ACHQ.com (“you”, “your” throughout this Agreement) and to provide any information that you share with ACHQ. By indicating your acceptance of this Agreement or by completing and submitting an ACHQ-hosted web form (“Form”) or other agreement that references this Agreement, you agree to be bound by this Agreement. If you do not accept this Agreement, you must not access or use the ACHQ Embed Platform Services.
We may amend this Agreement at any time by providing notice to you. Notice may be provided to you on www.ACHQ.com, on any other website maintained by ACHQ, by email, or by any other reasonable means. The amended Agreement is effective when posted or as of the date indicated, and your continued use of the ACHQ Platform Services constitutes your acceptance of any amended Agreement.
Using the ACHQ Embed Platform Services
ACHQ Platform Services. ACHQ offers electronic payment services through an online dashboard experience available at www.ACHQ.com and the ACHQ application programming interfaces (“ACHQ API”), and related technical, business and support services, each as may be modified or updated (together, the “ACHQ Platform Services”). The ACHQ Platform Services allow you to manage your end users’ payments experience on your platform, website, and/or application (each, a”Platform”) and open and manage end user ACHQ accounts (“Embedded Merchant Accounts”) (together, your “ACHQ Services”). An end user that has opened a Merchant Account is referred to as a “Merchant”. The products and services that you provide through your Platform, including the ACHQ Services, are referred to herein as “Your Services”. It is your sole responsibility to clearly explain to your end users the nature of Your Services, your ACHQ-Enabled Services, and ACHQ’s role in the provision of such services.
Agreements with Embedded Merchants: Your User Agreement must explain the Platform Services, how you access and use Embedded Merchant Data, and the Activity that you may perform. Your User Agreement must also give you clear authorization to perform the Platform Services, and to communicate the Embedded Merchant Data to ACHQ. ACHQ is not responsible to your Embedded Merchants for any Platform Services you provide — you are solely responsible for providing Platform Services to Embedded Merchants as described in Your User Agreement. You may only engage in Activity for an Embedded Merchant to the extent that you are doing so on behalf of the Embedded Merchant, in accordance with the authority granted to you under Your User Agreement.
Routine Business Operations Reviews. ACHQ may request, and you agree to provide, information about your business, operations, funds flows, and/or integration with the ACHQ Platform Services. ACHQ reserves the right to reassess your eligibility for the ACHQ Platform Services at any time. ACHQ may immediately suspend provision of any of the ACHQ Platform Services in the event that ACHQ reasonably determines, based on any of the review processes described in this Agreement, that you have become ineligible for any of the ACHQ Platform Services.
Prohibitions. You are prohibited from: (a) using the ACHQ Platform Services for any fraudulent, unlawful, deceptive, or abusive purposes; (b) using the ACHQ Platform Services in any manner intended to harm an end user, ACHQ, or any third party; (c) circumventing ACHQ’s intended limitations for any feature of the ACHQ Platform Services as communicated to you by ACHQ; (d) using the ACHQ Platform Services in a manner inconsistent with any developer documentation, integration guidance, or other technical, policy, or other requirements communicated to you by ACHQ or posted on ACHQ’s website, each as may be updated from time to time (“Integration Requirements”); (e) using the ACHQ Platform Services in violation of any guidance regarding restricted activities communicated to you by ACHQ; (e) using the ACHQ Platform Services to conduct transactions for personal, family, or household purposes; (f) facilitating transactions for a third party that is not your legitimate end user; (g) replicating and/or reselling the ACHQ Platform Services by offering and/or enabling any third party to access the ACHQ Platform Services through your integration; or (h) attempting any of the foregoing.
Compliance. You represent and warrant that you will only use the ACHQ Platform Services for lawful and legitimate purposes and that you will at all times comply and conduct your business in compliance with: (a) all applicable federal, state, and local laws, rules, regulations, and guidance, including, without limitation, those governing payment services, consumer protections, privacy, and data security (collectively, “Applicable Law”); (b) this Agreement; (c) the ACHQ Terms; and (d) the Integration Requirements.
Merchant Payment Service Agreement. ACHQ has a direct contractual relationship with each Embedded Merchant Account and provides ACH Origination Services directly to each Merchant. Merchants may choose to use the Services outside of their relationship with you.
Transaction Activity and your Liability. You are solely responsible for your end users’ payment activity initiated using the ACHQ Platform Services, including, without limitation, any fraudulent activity. ACHQ has no obligation to ensure that the funds required to complete a payment will be available. Any payment sent or received by you or your end users may: (a) be reversed in accordance with ACHQ or its Financial Institution Partners’ risk management policies, (b) be reversed in accordance with Applicable Law, including without limitation, by ACH return as defined under the Nacha Rules, (c) fail due to your error or end user error, (d) fail due to the provision of inaccurate information by you or your end user; or (e) be cancelled or rejected by an end user or the end user’s financial institution (each, a “Failed Payment“).
You are not liable to ACHQ and its Financial Institution Partners for any losses caused by approved or proper payment activity originated by your Platform on behalf of a Merchant via the ACHQ API; including losses caused by Failed Payments or Chargebacks.
You are liable to ACHQ and its Financial Institution Partners for any and all losses caused by unauthorized or erroneous activity API requests initiated by you or your Platform, whether through misconduct, negligence, error, or otherwise. You authorize ACHQ and its Financial Institution Partners to recover any such amounts due to ACHQ and/or its Financial Institution Partners by debiting the available balance in your ACHQ account or any other of your accounts that ACHQ may identify.
Onboarding Merchant Accounts
ACHQ Embed provides several mechanisms for you to onboard Embed Merchant Accounts, as described in the ACHQ Embed Documentation. You are solely responsible for the selection of your onboarding mechanism for Embedded Accounts. Regardless of the onboarding and integration mechanism that you select, you must always take all reasonable steps to ensure that your Embedded Accounts do not use Services in violation of the ACHQ Terms or for any activity that is expressly prohibited, including those business types listed on the Acceptable Use Policy.
Please read the following sections carefully prior to selecting the option that is appropriate for your business when onboarding Embedded Accounts. The method chosen may impact your requirements for data collection and security, as well as customer service and support obligations.
With basic account onboarding, you can use a set of prebuilt user interface components to create your own onboarding experience for Embedded Merchant Accounts directly from your Platform without collecting or storing with any sensitive Account data. Merchant Accounts created using basic onboarding provide information directly to ACHQ and will consent to the ACHQ Terms via the web component.
You will be able to to prepopulate all fields in the embedded component prior to granting the Merchant access to interface. You are responsible for ensuring the accuracy of any Account Data you prepopulate or provide as part of this process. Providing inaccurate or erroneous data may delay or prevent Account activation.
Upon submission of the Account data, the Merchant will be contact by ACHQ via email and prompted to connect their Transfer Account to ACHQ via Plaid. ACHQ will perform full Underwriting on the Account and any subsequent Onboarding requests for data or clarity will be sent directly to the Merchant by ACHQ. Your platform may choose to receive updates during the Onboarding process via Webhooks, Email, or Slack.
Upon activation, Basic Merchant Accounts will have full access to the ACHQ dashboard and will be assigned an ACHQ account manager.
Using Advanced onboarding, you can leverage the ACHQ Embed API to create Merchant Accounts for your users. You are responsible for collecting and ensuring Merchant Account data is passed to ACHQ in a secure fashion. You are responsible for the accuracy and completeness of any information about Merchant Accounts provided to ACHQ as part of the onboarding process. Additionally, it is your responsibility to provide any additional requests for data or clarity that may be required by the ACHQ Onboarding team on a given Account.
ACHQ will not contact “Advanced” Merchants directly during the Onboarding process and may decline to create or activate a Merchant Account until ACHQ is satisfied that it has received sufficient information about the Account.
ACHQ may allow you to take ownership of the core Underwriting functions required to activate a Merchant account. The ACHQ Embed documentation describes the minimum information that must be provided to ACHQ in order to create a Merchant Account through advanced onboarding. Depending on the industry type, transaction type, customer types, or any other risk factors, ACHQ may require that you provide additional information as part of the custom onboarding process, and may require you to alter the acceptance process for the ACHQ Services if we believe that the process is not consistent with applicable law, industry standard practices, or ACHQ’s standards.
ACHQ may require that you establish certain criteria for accepting Merchant Accounts consistent with ACHQ’s programs for underwriting and screening Merchant Accounts (“ACHQ Underwriting Guidelines and Policies”). ACHQ has ultimate discretion regarding its underwriting, risk and compliance decisions, including any decision of whether to provide Services to any Merchant Account. ACHQ reserves the right to suspend or terminate provision of Services to any Merchant Account at any time if ACHQ determines that the Merchant Account’s activities (a) violate ACHQ’s Underwriting Policies or the ACHQ Payment Services Agreement; (b) are listed on the Restricted Businesses List; or (c) otherwise reflect negatively on the brand or reputation of ACHQ, a Financial Institution Partner, or a Regulatory Agency.
To the extent that you become aware of a Merchant being engaged in any fraudulent, unlawful, deceptive or abusive activity, you must promptly notify ACHQ. Once notified by you, ACHQ will use commercially reasonable efforts to determine whether to terminate or suspend any such account’s access to the Services.
Embed Platform Revenue Sharing
During the term of this agreement ACHQ Embed Platform Fees are aggregated by Merchant over the course of a calendar month, unless otherwise communicated to you in advance in writing. Fees incurred in a calendar month will be charged to Merchant’s on or after the 2nd business day of the following month. The Fee calculation will be derived from the fee schedule as set forth during the Onboarding process, and any other schedules that may exist, which are all made part of this Agreement.
On or about the fifteenth (15th) day of each month, ACHQ will credit via ACH into your account an amount equal to the revenue sharing payment (the “Revenue Share”). The Revenue Share will be computed monthly as of the last day of each calendar month. This calculation will be based upon the revenue sharing agreed set forth in the previously agreed upon “ACHQ Platform Payments” Proposal. ACHQ will provide a transactional report each month, corresponding to each Revenue Share for auditing purposes. You shall report any claim relating to the Revenue Share within sixty (60) days of the date of payment, after which the amount of payment shall be final and binding. You will receive the Revenue Share only if the applicable fees have been paid in full by Merchants.
Privacy and Data Security
Use of Data. You must obtain your end users’ express consent to use their data for the purposes of providing Your Services, including the ACHQ Services, to them. You understand and agree that you may only use data that you receive via the ACHQ Platform Services in accordance with this Agreement and Applicable Law. You are prohibited from selling, transferring, sublicensing, and/or assigning any interest in any data that you access or receive via the ACHQ APIs and the ACHQ Platform Services. You acknowledge that you are solely responsible for your use of any end user data.
Data Security. Each party is responsible for the security of all data in its possession or control and for its compliance with Applicable Law in connection with its data handling and management practices. Each party is responsible for maintaining commercially reasonable data security controls to protect and secure data from unauthorized use, access, or disclosure. You agree to provide ACHQ with any evidence to demonstrate your compliance with this section upon request by ACHQ. You agree that ACHQ may terminate your use of the ACHQ Platform Services in its sole discretion if ACHQ determines that you or your application pose an unacceptable security risk to ACHQ, its platform, or its users.
Confidential Information Definition. “Confidential Information” means any type of information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement, regardless of the form of disclosure and which (a) is clearly marked as “confidential” or “proprietary” at the time of such disclosure, or (b) should, by its nature and the circumstances of disclosure, reasonably be understood to be confidential by Receiving Party. Notwithstanding the foregoing, Confidential Information does not include information that is in Receiving Party’s possession at the time of disclosure, as substantiated in writing, or enters the public domain without breach of this Agreement.
Confidentiality Obligation. Receiving Party must maintain the confidentiality of Disclosing Party’s Confidential Information in a commercially reasonable manner and in a manner no less stringent than the measures it employs to protects its most confidential and proprietary information. Receiving Party must not use Disclosing Party’s Confidential Information for any purpose other than as necessary to perform Receiving Party’s obligations under this Agreement. Receiving Party may disclose Confidential Information that is required to be disclosed pursuant to any statute, regulation, order, subpoena or document discovery request, or in response to an inquiry or request of any governmental or regulatory agency or self-regulatory organization, provided that, to the extent not prohibited, Receiving Party will notify Disclosing Party of such request as soon as practicable in order to afford Disclosing Party an opportunity to seek a protective order. Receiving Party’s obligation to maintain the confidentiality of Confidential Information will survive the termination or expiration of this Agreement for any reason.
Term and Termination
Term The initial term of this Agreement shall be for a period of one (1) year, commencing on the date set forth herein, and shall thereafter automatically renew for additional terms of (1) year on the anniversary date of this Agreement, unless notice is provided in writing by either party of its intent not to renew, 60 days or more prior to the renewal date.
Termination. Either ACHQ or you may terminate this Agreement at any time by providing the other party with 60 days written notice. Upon completion of the termination notice period, you will: (a) immediately be restricted from using the ACHQ Platform Services to accept new transactions or activate new Merchant Accounts, (b) cooperate with ACHQ to complete all pending transactions, (c) promptly disburse any funds held in Merchant Accounts in accordance with your agreement with end users.
ACHQ may also terminate this Agreement immediately if: (d) you fail to pay any Fees or any other amounts owed under this Agreement within thirty (30) days of receiving notice from ACHQ that payment is owed; (e) you violate this Agreement or any other applicable ACHQ policy or agreement; or (f) your use of the ACHQ Platform Services poses unacceptable risk, including but not limited to financial or data security risk, to ACHQ and/or its Financial Institution Partner in ACHQ’s and/or its Financial Institution Partner’s sole discretion; or (g) If Nacha, FTC, CFPB, or any federal, state or other type of regulatory agency having jurisdiction over this Agreement makes a demand that ACHQ terminate its relationship your platform or industry type.
Without limiting the foregoing, you expressly acknowledge and agree that you will have a continuing obligation after termination of this Agreement to pay any Fees, fines, or other amounts related to your transactions as set out in this Agreement, and to appropriately disburse any Customer Account funds.
Representations and Warranties
You represent and warrant to ACHQ that you,
(a) have the full power and authority to execute, deliver and perform this Agreement and acknowledge this Agreement is valid, binding and enforceable in accordance with its terms;
(b) no provision in this Agreement requiring your performance is in conflict with your obligations under any charter or any other agreement of any form to which you are bound as a party;
(c) are organized, authorized and in good standing under the laws of the state of your organization;
(d) obtain authorization from the Merchant for all Activity initiated on its behalf, and for the use of any Merchant Account Data obtained through or used with ACHQ Embed, by you, your employees, and your agents;
(e) dutifully comply with the onboarding obligations described in this Embed Platform Agreement;
(f) not use ACHQ Embed or knowingly permit the use of Services by Embedded Accounts in a manner that is fraudulent, unlawful, deceptive or abusive.
To the maximum extent permitted by law, except as expressly provided in this Embed Platform Agreement, ACHQ provides ACHQ Embed to you on an “as is” / “as available” basis, without any warranties, express, implied, or statutory.
Other Legal Terms
Indemnification. Each party hereto (the “Indemnitor”, as the case may be) agrees to indemnify, defend, and hold the other party, its employees, directors, managers, officers and agents (collectively, the “Indemnitees”) harmless from and against any reasonable loss, liability, damage, penalty or expense (including reasonable attorneys’ fees and other legal fees) the Indemnitees may incur as a result of Indemnitor’s or Indemnitor’s employees’, sales reps’, sub contractors’ or affiliates’, failure to comply with the terms of this Agreement including any misrepresentation of ACHQ Services, breach of representations or warranties made, the manner or method in which services are performed, negligence or acts or omissions that cause damages to the Indemnitees or their Vendors or partners, and violations of the Rules.
Where an Embedded Merchant was created by your platform via an ACHQ onboarding process, you also agree to defend, indemnify, and hold harmless all Disclaiming Entities from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (a) Activity on the Embedded Merchant, whether initiated by you or not (including all Transactions, Disputes, Refunds, Reversals, Claims, fines associated with such Activity, or use of the Services in a manner prohibited under this Embed Platform Agreement or the ACHQ Payment Services Agreement); (b) any inaccurate or incomplete information provided to ACHQ as part of the onboarding of the Embedded Merchant; and (d) for custom onboarding, your failure to acquire binding acceptance of the ACHQ Embedded Merchant Agreement from any Embedded Merchant.
ACHQ agrees to defend, indemnify, and hold you harmless from and against any claim, suit, demand, action, or proceeding instituted by a non-affiliated third party to this Embed Platform Agreement to the extent that such arises out of ACHQ Embed infringing the third party’s intellectual property rights.
Limited Warranty. THE ACHQ PLATFORM SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ACHQ MAKES NO REPRESENTATION OR WARRANTY THAT THE ACHQ PLATFORM SERVICES WILL MEET YOUR REQUIREMENTS OR BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE.
Limitation of Liability. IN NO EVENT WILL ACHQ BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (a) THIS AGREEMENT, OR (b) YOUR USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE ACHQ PLATFORM SERVICES UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER ACHQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ACHQ’S LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES ACHQ HAS RECEIVED FROM YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO A CLAIM. THIS LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
Assignment. You may not transfer, assign, or delegate this Agreement or any of your rights, obligations, or duties under this Agreement without the prior written consent of ACHQ. ACHQ may transfer or assign this Agreement or any of its rights, obligations, or duties under this Agreement at any time.
Independent Contractor Relationship. You and ACHQ are independent entities, and this Agreement does not create any partnership, agency, or joint venture relationship between you and ACHQ. You may not and may not attempt to represent, warrant, or obligate ACHQ to any commitment with any third party.
Force Majeure. ACHQ is not responsible for any failure to perform its obligations under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, including, but not limited to, weather, fire, flood, earthquake, war, embargo, strike, riot, civil unrest, acts of terrorism, failure or interruption of public or private infrastructure, or the intervention of any government entity. In the event of such a failure, ACHQ’s obligations will be suspended until ACHQ is able to perform.
Notices. All notices to ACHQ must be sent by email to [email protected].
Governing Law; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida in federal or state court in Sarasota County, Florida. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.
No Third Party Beneficiaries. This Agreement is intended for the exclusive benefit of you and ACHQ and not intended to benefit any third party.
Attorneys’ Fees. Should suit or arbitration be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees and fees on any appeal.
Entire Agreement, Conflicts, No Waiver, Construction. This Agreement, along with the ACHQ Terms, the Integration Requirements, any executed Order Form, and any documents incorporated by reference, constitute the entire agreement between the parties. Any agreement to modify or amend this Agreement must be agreed to in writing by the parties. With the exception of any Order Form that the parties have executed, to the extent that the terms of this Agreement conflict with any other ACHQ agreement or policy governing your use of the ACHQ Platform Services, this Agreement will control. Any failure by ACHQ to enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by law, and the remaining provisions will remain in full force and effect. All provisions of this Agreement that by their nature are intended to survive termination or expiration of this Agreement will survive termination of this Agreement for any reasons. No provision of this Agreement will be construed against a party by reason of that party drafting such provision.