This Agreement is made and entered into by and between InstaPayUSA LLC, and you, the InstaPayUSA Account Holder.
Certain Definitions. In this Agreement, the words "you" and "your" refer to the person or business who has applied for and accepted or used an InstaPayUSA Account, including any authorized user of the Account. "InstaPayUSA Account" refers to the Account set up by InstaPayUSA that includes the capability to transfer funds electronically. "InstaPayUSA," "we," "our," and "us" refer to InstaPayUSA, LLC., a Utah Limited Liability Company and its corporate partners or affiliates. "Banking Partner" refers to the bank sponsor through which InstaPayUSA will submit any Automated Clearing House ("ACH") electronic funds transfer request. "ACH Credit" refers to a transaction that electronically transfers funds to your Account from an account at a financial institution, while an "ACH Debit" refers to a transaction which electronically transfers funds from your Account to an account at a financial institution. "ACH Item" refers to an ACH credit, an ACH debit, or both. The words "Intra- InstaPayUSA Transfer" refer to an electronic transfer of funds between any type of an Account held with InstaPayUSA and any other InstaPayUSA Account. The words "business day" means every Monday through Friday, except Federal and Utah state holidays. "Affiliation" or "Affiliation Status" refers to the relationship between you and a third party entity with which InstaPayUSA has entered into an agreement for special terms and/or pricing. The headings in this Agreement are for convenience of reference only and will not govern the interpretation of the provisions hereof. Unless it would be inconsistent to do so, words and phrases used in this document should be construed so the singular includes the plural and the plural includes the singular.
1. Checking Account. You must establish and maintain a checking account as described in your Account profile to facilitate the transfer of funds. As part of this agreement, you irrevocably authorize InstaPayUSA to debit your Checking Account for any fees, payments or penalties you owe or may owe InstaPayUSA relating to ACH or Intra- InstaPayUSA transactions. You authorize InstaPayUSA to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant you conditional credit for any entry. When registering a checking account in your Account profile, you will be required to enter your bank name, the routing number of your bank, and your checking account number. Once this information is entered, you will be required to validate that the routing number and checking account number are correct and that you have the proper authorization to access the account.
ACH Transactions. When you request InstaPayUSA to transfer funds from your checking account to another checking account, you are requesting an electronic funds transfer through the ACH system. By doing so, you authorize InstaPayUSA to initiate, process, transmit, and settle through a Banking Partner, an ACH debit or credit in the amount that you specify. You agree that your ACH requests are accurate, timely, and have been authorized by the party into whose account the credit will be made, or by the party from whose account the debit will be made. Your authorization will remain in effect after termination of this Agreement and until InstaPayUSA has received written notice terminating this authorization and all your obligations to InstaPayUSA have been paid in full.
a. Adherence to ACH Rules. You agree to be bound by the rules of the National Automated Clearing House Association ("NACHA") in effect as they may be amended from time to time. You also agree not to request an ACH transfer that violates the laws of the United States, which include, but are not limited to, sanctions enforced by the Office of Foreign Assets Control ("OFAC").
b. ACH Returns, Rejections, Cancellations, and Acceptance.. You may be charged a fee for any ACH transactions that result in a returned ACH item, such as, but not limited to, those caused by insufficient funds in your checking account, closure of your checking account, or if the bank account number or other information you provided is incorrect. InstaPayUSA reserves the right to resubmit for collection any ACH item authorized by you that is returned InstaPayUSA will notify you within 2 (two) business days of the receipt of a returned ACH item.
Upon written request, InstaPayUSA will attempt to cancel an entry before transmitting it. However, InstaPayUSA shall have no liability if the effect of cancellation fails.
InstaPayUSA is not responsible or liable in any way for any entry not accepted by InstaPayUSA Banking Partner.
c. Provisional Credits. All credits to your Account resulting from an ACH debit are provisional until final settlement is made through a Federal Reserve Bank. If InstaPayUSA does not receive final settlement, you will refund InstaPayUSA the amount of any such entry.
d. Accuracy of Information. You acknowledge that if a financial institution name and number are incorrect or inconsistent, we may rely on the identifying number alone, even if the number identifies a financial institution, person, or account other than the one named.
e. Fees.You will pay InstaPayUSA fees for services in accordance with this Agreement by reference under the fee structure. Such fees will be calculated and debited from amounts due to you under the InstaPayUSA Account concurrently with transaction activity, or will be netted out from the funds due you under this Agreement.
You will immediately pay InstaPayUSA any amount incurred by InstaPayUSA attributable to the transfer of funds pursuant to this Agreement, including but not limited to non-sufficient fund fees, or other fees charged from any other financial institution for any amount you owe InstaPayUSA under this Agreement or under any contract now existing or later entered into between you and InstaPayUSA.
f. Transfer Amount Limitations. Currently, InstaPayUSA limits the amount you are allowed to transfer from your checking account to $10,000.00 per day. If you wish to increase the limitations allowed you must contact a customer service representative and an exception may be allowed on an individual basis.
For fraud and anti-money laundering purposes, InstaPayUSA reserves the sole and exclusive right to review large electronic transfer of funds to or from your Account before releasing the funds. InstaPayUSA also reserves the right to refuse any transfer of funds at our discretion.
g. Type of Bank Account Required. You may only use a checking account of a financial institution located in the United States of America ("US") or US Territories (Puerto Rico, Guam, American Samoa, and the US Virgin Islands). The electronic transfer of funds to or from a foreign bank or the branch of a foreign bank in a territory of the United States is also prohibited. The term foreign bank does not include: (i) A US agency or branch of a foreign bank; and (ii) An insured bank organized under the laws of a territory of the United States, Puerto Rico, Guam, American Samoa, or the US Virgin Islands. Please ensure that the bank routing and the checking account numbers are correct or you may be subject to a fee. If you have any doubt as to the accuracy of the bank routing or the checking account numbers, please call your bank for verification.
h. Potential Liability.You can inspect your transaction history at any time by logging in to your Account online and selecting one of the available reporting functions. It is very important that you contact InstaPayUSA at once if you believe your user ID or password has been compromised, or if someone has transferred, or may transfer funds using your Account without your permission. Under applicable ACH regulations, the extent of your liability for an unauthorized transaction may be determined by your promptness in notifying InstaPayUSA if someone has gained access to your password, or if any transaction shown in your account history reports is incorrect or unauthorized. Notifying InstaPayUSA quickly limits your liability:
Balances.Balance will be held in your InstaPayUSA Account for the benefit of others until such authorized releases. InstaPayUSA will hold your funds separate from its corporate funds, will not use your funds for its operating expenses or any other corporate purposes and will not voluntarily make your funds available to its creditors in the event of bankruptcy. While your funds are in our custody, InstaPayUSA will combine your funds with the funds of other Users and place those Pooled Accounts in one or more bank accounts in InstaPayUSA's name. Balances in US Dollars that are held in Pooled Accounts may be eligible for FDIC pass-through insurance.
Assignment of Interest to Insta Pay Escrow.You agree that you will not receive interest or other earnings on the funds that InstaPayUSA handles as your agent and places in Pooled Accounts. In consideration for your use of the Service, you irrevocably transfer and assign to InstaPayUSA any ownership right that you may have in any interest that may accrue on funds held in Pooled Accounts. This assignment applies only to interest earned on your funds, and nothing in this Agreement grants InstaPayUSA any ownership right to the principal of the funds you maintain with InstaPayUSA. In addition to or instead of earning interest on Pooled Accounts, InstaPayUSA may receive a reduction in fees or expenses charged for banking services by the banks that hold your funds.
Reversals, Rejections, and Acceptance. InstaPayUSA may reverse any entry if it believes, in its sole discretion, that the entry may be subject to dispute or reversal. You understand and agree that your request to transfer funds is final and irrevocable, that you have no right to reverse or stop such an entry once the entry is communicated to InstaPayUSA, and you hereby waive any right you may have of recourse against InstaPayUSA or to dispute or reverse a request to transfer funds. An Intra- InstaPayUSA funds transfer under this Agreement is the equivalent of sending cash to the recipient. InstaPayUSA has no obligation whatsoever to any proposed recipient of funds. In the event of any dispute between you and a funds recipient, you agree that such dispute will be settled between you and the proposed recipient, and you hereby indemnify and hold harmless InstaPayUSA against all liabilities, claims and damages incurred by and brought against InstaPayUSA by any third party arising out of this Agreement, including but not limited to reasonable attorneys' fees and costs. InstaPayUSA may reject any entry that does not comply with requirements outlined in this Agreement. We will notify you within 2 (two) business days from the day the rejected entry would otherwise have been transferred.
Warranties. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, INSTAPAYUSA MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT, INSTAPAYUSA EXPRESSLY DISCLAIMS, AND YOU EXPRESSLY WAIVE, ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO DESCRIPTIONS OR SPECIFICATIONS, WHETHER OR NOT INCORPORATED INTO THIS AGREEMENT, SHALL CONSTITUTE WARRANTIES OF ANY KIND.
Indemnification. You shall indemnify and hold harmless InstaPayUSA and its Banking Partner(s) for any action they take with respect to your Account, including funds in any Operating Account, and/or Reserve Account, and/or Cardfunding Account. You will also indemnify and hold harmless the Bank Partner(s) for acting in accordance with any instruction from you or InstaPayUSA regarding your Account. Further, you shall indemnify and hold harmless InstaPayUSA and its Banking Partner(s), its employees, officers, directors, shareholders and agents from any and all loss, cost, expense, claim, damage and liability (including attorneys' fees and costs) paid or incurred by any one or more of them, arising from, caused by, or attributable to, any of the following:
1.Any and all claims or damages made by third parties arising out of this Agreement, including but not limited to all attorneys' fees and costs paid or incurred by InstaPayUSA in the enforcement of the Agreement and those resulting from any transaction processed under this Agreement, or any breach by you of this Agreement and those related to any bankruptcy proceeding;
2. Willful misconduct, fraud, intentional tort or negligence by you or that of your employees, agents or representatives;
3. Any and all claims or damages by you which are the result of theft, embezzlement, unauthorized use, transfer or withdrawal of funds with respect to your Account.
Entire Agreement. This Agreement and any amendment or supplement to this Agreement or other referenced agreements, all of which are incorporated into this Agreement, constitutes the entire agreement between the parties, and all prior or other agreements or representations, written or oral, are superseded by this Agreement.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Utah, except where Federal law is applicable.
Jurisdiction/Waiver of Jury Trial. THE PARTIES AGREE THAT ALL PERFORMANCES AND TRANSACTIONS UNDER THIS AGREEMENT WILL BE DEEMED TO HAVE OCCURRED IN UTAH AND THAT YOUR ENTRY INTO AND PERFORMANCE OF THIS AGREEMENT WILL BE DEEMED TO BE THE TRANSACTION OF BUSINESS WITHIN THE STATE OF UTAH. YOU AND INSTAPAYUSA CONSENT TO AND AGREE THAT, THE EXCLUSIVE JURISDICTION AND VENUE FOR ANY DISPUTES HEREUNDER SHALL BE AN APPROPRIATE FEDERAL OR STATE COURT LOCATED IN SALT LAKE CITY, UTAH. YOU AND INSTAPAYUSA WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION CONCERNING ANY RIGHTS OR DISPUTES UNDER THIS AGREEMENT.
Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
Assignability. This Agreement may be assigned by InstaPayUSA, but may not be assigned by you directly or by operation of law, without the prior written consent of InstaPayUSA. If you nevertheless assign this Agreement without InstaPayUSA’s consent, the Agreement will be binding on the assignee. If you sell your business, and the new owners incur fines, fees, or penalties, the original owner will be held personally liable for all fines, fees, or penalties, and any other liabilities of the new owners.
Notices. Any notice under this Agreement will be deemed given and delivered upon the earlier of: (a) actual receipt or (b) five days after being deposited in the United States mail, and addressed, if to InstaPayUSA, to: InstaPayUSA LLC, 544 N 880 E, Springville, UT 84663, and if to the other parties: to the last address shown on the records of the sender or (c) one (1) business day after being sent by email or other electronic communication if to you at the last email address provided by you to InstaPayUSA and if to InstaPayUSA at firstname.lastname@example.org
Attorneys' Fees. You will be liable for and will indemnify and reimburse InstaPayUSA for all attorneys' fees, with our without suit, court costs, collection agency fees not to exceed 50% of the amount owed, and other costs and expenses paid or incurred by InstaPayUSA in the enforcement of this Agreement, or in collecting any amounts due from you to InstaPayUSA or resulting from any breach by you of this Agreement.
Customer Contact. You authorize InstaPayUSA to contact your customers or their bank if they determine that such contact is necessary to find out information about any payment transaction between you and the customer. Also, you will provide to InstaPayUSA, upon InstaPayUSA's request, contact information for your customers as deemed necessary and reasonable by InstaPayUSA.
Amendments. This Agreement, and the Agreements and/or Policies referenced and incorporated herein may be amended, modified, or revised at any time, without notice. While InstaPayUSA may notify you as this Agreement and/or the Agreements and/or Policies referenced herein are modified, it is your sole responsibility to review and maintain familiarity with this Agreement and/or Agreements and/or Policies referenced herein, including any changes that may be made to these documents, respectively, from time to time thereto. The amendments to this Agreement and/or Agreements and/or Policies referenced herein will become effective and binding upon you immediately and contemporaneously as the amendments are published to the InstaPayUSA website(www.instapayusa.com or https://www.instapayusa.com). In the event you do not agree to the aforementioned amendments and do not wish to be bound the terms and conditions thereto, you shall provide written notice to Insta Pay Escrow (including by submitting to InstaPayUSA Customer Service at email@example.com by providing your name, your current email address on file with InstaPayUSA, and a statement that you do not agree to the terms and conditions. If you do not agree to the terms and conditions of the amendment, your account will be terminated and closed. Notwithstanding the foregoing, (a) changes to fees authorized by this Agreement, will be effective upon the giving of notice to you and (b) any fee increase, change in Rules or other requirement imposed by NACHA may be passed on to you and will be effective upon the giving of notice to you.
Severability and Waiver. If any provision of this Agreement is held invalid, illegal, void or unenforceable by reason of any judicial decision, all other provisions of this Agreement shall nevertheless remain in full force and effect. No course of dealing, delay or failure to enforce any provision or exercise any right under this Agreement, by InstaPayUSA or Bank Partner(s) shall be construed as a waiver or estoppel of such provision or right, nor shall it amend this Agreement or affect the validity of this Agreement or curtail the ability of any party to enforce such provision or exercise such right in the future. All waivers must be signed by InstaPayUSA.
Independent Contractors. InstaPayUSA, Bank Partner(s), and You will be deemed independent contractors and none will be considered an agent, joint venturer, or partner of the other.
Survival. Sections of this Agreement and the applicable Exhibits in effect upon the date of termination shall survive termination of this Agreement.
Arbitration. Notwithstanding anything in this Agreement to the contrary, InstaPayUSA, bank sponsor(s) and you agree that any one of them (a "party") may require that any claim or dispute ("Dispute") under this Agreement shall be resolved exclusively and finally by binding arbitration, administered by the National Arbitration Forum ("NAF") and conducted under its rules, except as otherwise provided below. For the purposes of this paragraph, "Dispute" means any dispute, controversy, or claim arising out of or relating to this Agreement, negotiations leading to the Agreement, its interpretation, any act of any party related to the Agreement, or the breach, termination, applicability or validity thereof. The arbitration will be conducted before a single arbitrator, and will be limited to your Dispute. You may not bring a Dispute on behalf of others or join others in any similar claims (you may not bring or participate in a class action). As the parties to the Dispute agree, the arbitration shall be held in Utah by submission of documents, by telephone, online or in person. Any decision rendered in such arbitration proceedings shall be final and binding on each of the parties, to the Dispute and judgment may be entered thereon in any court of competent jurisdiction. Should any party bring a Dispute in a forum other than NAF, the arbitrator may award the other party or parties their reasonable costs and expenses, including actual attorneys' fees, incurred in staying or dismissing such other proceedings or in otherwise enforcing compliance with this dispute resolution provision. Each party understands that it would have had a right to litigate disputes through a court, and that each has expressly and knowingly waived that right and agreed to resolve any Dispute through binding arbitration. The parties intend that the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) shall govern this arbitration provision. Information on arbitration procedure may be obtained from the NAF on-line at www.arb-forum.com, by calling 800-474-2371 or by writing to P.O. Box 50191, Minneapolis, MN, 55405.