Last Modified: March 19, 2026
Wyllo Merchant Terms of Service
This Merchant Terms of Service (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and Wyllo LLC (“Wyllo,” “we,” or “us”). This Agreement governs your access to and use of the Services.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I AGREE” BUTTON (OR SIMILAR BUTTON OR CHECKBOX) PRESENTED TO YOU WITH THIS AGREEMENT, SIGN AN ORDER REFERENCING THIS AGREEMENT, OR ACCESS OR USE THE SERVICES (the “EffectiveDate”). BY CLICKING ON THE “I AGREE” BUTTON (OR SIMILAR BUTTON OR CHECKBOX) PRESENTED TO YOU WITH THIS AGREEMENT, SIGNING AN ORDER REFERENCING THIS AGREEMENT, OR ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THEN “CUSTOMER,” “YOU” AND “YOUR” WILL REFER AND APPLY TO SUCH ORGANIZATION.
IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
1. YOUR AGREEMENT.
1.1 Modifications to the Agreement
We may update or modify this Agreement from time to time for any reason in our sole discretion, including to reflect changes in the Services, applicable laws or regulations, business practices. When we make changes, we will update the “Last Updated” date at the top of this Agreement.
If we make material changes, we will provide reasonable advance notice, which may include posting the updated Agreement on our website, providing notice through the Services, notification via email, or by other reasonable means. If you do not agree to the changes to the Agreement, then you must notify us in writing within thirty (30) days of our notice (the “Objection Period”). If you provide such objection notice within the Objection Period, then the change to the Agreement will not automatically be effective for you, and you and Wyllo agree to negotiate in good faith a mutually acceptable solution, provided, however, that Wyllo may at any time after receipt of such notice terminate this Agreement by providing notice to you. If you do not deliver an objection notice to us within the Objection Period, the updated Agreement will automatically be effective and binding on you and Wyllo upon expiration of the Objection Period.
1.2 Structure of the Agreement
Any order form duly executed by you and Wyllo or a third-party platform selling access to the Services on our behalf (“Platform Partner”), or agreed online as part of an online purchase of a subscription (the “Order Form”), forms a part of this Agreement and is hereby incorporated by reference herein. In the event of any conflict between the Order Form executed by you and Wyllo (but not an Order Form between you and a Platform Partner) and the terms and conditions of this Wyllo Merchant Terms of Service, the Order Form shall govern.
1.3 Scope of Service
Scope of Service. Subject to the terms and conditions of this Agreement, including your Order Form, Wyllo will provide the services reflected in the Order Form, as further detailed on Wyllo’s website available at Wyllo Services (the “Services”). Additional terms and conditions applicable to specific Services may be included in the Order Form. For clarity, Wyllo is not a bank and is not offering banking services, and Wyllo is not acting as your payment processor or payment gateway. Wyllo reserves the right to refuse to provide the Services to any person or entity at any time.
1.4 Changes to the Services
Wyllo reserves the right to improve, modify or temporarily or permanently discontinue any portion of the Services at any time without notice to you and without liability to you; provided, however, that if Wyllo changes the Services in a manner that materially adversely impacts your use of the Services, you may terminate this Agreement by providing written notice to Wyllo within thirty (30) days after the implementation of the materially adverse change.
1.5 Suspension
Notwithstanding anything to the contrary in this Agreement, Wyllo may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Services if: (i) Wyllo reasonably determines that (a) there is a threat or attack on the Services or any systems used to provide the Services; (b) Customer’s or any other Authorized User’s use of the Services disrupts or poses a security risk to Wyllo or to any other customer or vendor of Wyllo; (c) Customer or any other Authorized User is using the Services for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (e) Wyllo’s provision of the Services to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Wyllo has suspended or terminated Wyllo’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) Customer has failed to make any payment for the Services when due. Wyllo shall use commercially reasonable efforts to provide notice of any Service suspension to Customer. Wyllo will have no liability for any damage, liabilities, losses (including any loss of revenues or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service suspension.
1.6 Free Trial; Beta Services; Evaluation Features
Wyllo may make the Services, or certain features, functionality, integrations, or modules thereof, available to you on a free, trial, proof-of-concept, beta, pilot, preview, early-access, evaluation, or other similar basis (collectively, “Trial/Beta Services”). Trial/Beta Services are provided solely for evaluation and testing purposes and may be subject to additional terms specified by Wyllo. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TRIAL/BETA SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, AND WYLLO AND ITS AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ACCURACY WITH RESPECT TO TRIAL/BETA SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WYLLO SHALL HAVE NO LIABILITY WHATSOEVER ARISING OUT OF OR RELATING TO TRIAL/BETA SERVICES, INCLUDING FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, GOODWILL, OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You acknowledge and agree that Trial/Beta Services may contain bugs, errors, or other defects and are not intended for production use.
2. YOUR RESPONSIBILITIES
2.1 Registration Requirements
To use the Services (i) you must have a valid email address and provide complete and accurate registration details and information; (ii) be authorized to do business in the United States; (iii) have full power and authority to enter into this Agreement and in doing so, not violate any other agreement to which you are a party; and (iv) not use the Services if any laws applicable to you prohibit you from doing so in accordance with this Agreement. The information provided by you during registration (or provided to us for you when you create an account through a Platform Partner) is incorporated herein by reference; provided, however, that any conflicting information contained in any subsequent, valid Order Form shall control over any registration information previously provided by you. As necessary, you agree to update your registration information to ensure that it is accurate and complete. Wyllo’s ability to provide the Services relies on you providing accurate and complete information to Wyllo, and you agree to regularly update all information you provide in connection with the Service to ensure that it is at all times accurate and complete.
2.2 Your Responsibilities
You acknowledge and agree that you are solely responsible for obtaining any and all third party services necessary to your use of the Services, including, without limitation, payment gateway services and merchant acquiring services in connection with the transactions used with the Services. You are responsible for obtaining all consents from, and the full cooperation of, your payment gateway, merchant acquirer and any other third parties integrating with the Services on your behalf (collectively, “Merchant Providers”) as necessary for you to receive the Services. You will complete any set up and configuration requirements identified by Wyllo as a condition to receiving any Service. In no event will Wyllo be liable under this Agreement if Wyllo shares transaction information or data with any of your Merchant Providers on your behalf. You are fully responsible for the security of data on your ecommerce sites or mobile applications (collectively, the “Sites”) or data otherwise in your possession or control (collectively, your “Channels”). You agree to comply with all applicable state and federal laws and rules in connection with your collection, security and dissemination of any personal, financial, card, or transaction information (defined as “Payment Data”) in connection with your Channel(s). You are solely responsible for compliance with any laws, rules or regulations applicable to your business. You specifically agree that at all times you will be compliant with all Payment Card Industry Data Security Standards (PCI-DSS) and the Payment Application Data Security Standards (PA-DSS) (collectively, the “PCI Standards”) which are applicable to your use of the Service. Wyllo reserves the right to require you to provide Wyllo with documentation evidencing your compliance with any requirements of this Agreement in order to receive or continue to receive the Service.
2.3 Wyllo Technology
We may make available certain technology to integrate into your Sites to enable you to use certain aspects of the Services, including our application programming interfaces (“APIs”), pixels or JavaScript snippets, software development kits (“SDKs”) and other technologies (the “Wyllo Technology”). You will implement the Wyllo Technology (and any updates) in accordance with relevant Wyllo documentation made available to you and our reasonable instructions. You will promptly cease using Wyllo Technology and remove all Wyllo Technology from your sites upon termination of this Agreement. You understand and acknowledge that the Wyllo Technology may continue to collect data until removed from your sites.
2.4 Authorized Users
Only users authorized by you (each, an “Authorized User”) may use the Services. Any violation of this Agreement by an Authorized User, including any of your affiliates that use the Services, shall be deemed to be a violation by you of this Agreement. You are solely responsible for the security, confidentiality and proper creation, use and termination of all Authorized User accounts, including all user names and passwords associated with your Authorized User accounts (“Login Credentials”). You are responsible for all use of the Services using your Login Credentials, whether or not authorized by you, except to the extent caused by our negligence or intentional misconduct. You shall immediately change your Login Credentials and notify Wyllo if you become aware or have reason to suspect that your Login Credentials have been compromised.
2.5 Acceptable Use.
The Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Wyllo’s acceptable use policy (“AUP”) located at Wyllo Acceptable Use Policy (AUP), as may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted in the Services from time to time, including the AUP.
2.6 Customer Data
“Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Services, including without limitation, any data regarding your customers (“End Customers”) or any transactions that you submit or upload to or otherwise process using the Services. You hereby grant to Wyllo a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Wyllo to provide the Services to you. You will ensure that Customer Data and any Authorized User’s use and provision of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data. Wyllo may access, read, preserve, and disclose any Customer Data as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Wyllo, its users and the public. Wyllo has no obligation to back up or retain any data, including any Customer Data, that Wyllo may obtain from you or on your behalf in connection with the provision of the Services.
2.7 Contacts with End Customers
For each of your End Customer that processes a transaction that is verified by the Services, you shall obtain express prior written consent from such End Customer to send (or for a third party such as Wyllo to send on your behalf) them correspondence regarding such transactions, including but not limited to via text message. In receiving such consent, you shall include:
- A description of the type of correspondence they can expect (e.g. text messages regarding goods purchased on your website).
- The approximate number of messages they should expect to receive based on the Services you utilize (e.g. 3 total: 1 upon order, 1 upon shipment, and 1 upon delivery).
- A link to your privacy policy.
- Instructions on how to opt out from receiving messages (STOP instructions), as well as how they can get help information (HELP instructions). You can provide a link that contains detailed information about these instructions.
You shall not use the Services in connection with any End Customer transaction for any End Customer that has not provided such express prior written consent in manner compliant with all applicable laws.
2.8 Due Diligence and Remedial Action
You will conduct reasonable due diligence into any End Customer complaint that you receive relating to your use of the Services, such as any action or decision that you make based on the provision of the Services to you. You represent, warrant and agree that you will take appropriate action in response to any such End Customer complaint if you determine that such action is appropriate to correct any action or decision that you make based on the provision of the Services to you.
3. TERM AND TERMINATION
3.1 Term of Agreement
This Agreement is effective upon the date you accept it (as described herein) and shall remain in effect until terminated in accordance with the Agreement (the “Term”).
3.2 Term of Service
If you have executed a valid Order Form, the term of your subscription to the Service shall begin upon your acceptance of such Order Form and shall continue for the period set forth in such Order Form (the “Initial Service Term”). Upon expiration, your subscription shall automatically renew for additional renewal periods of the same length as the Initial Service Term (each a “Renewal Service Term,” and all Renewal Service Terms together with the Initial Service Terms, the “Service Term”), unless you or we provide written notice to the other of non-renewal of the Service Term not less than thirty (30) days prior to the expiration of the then-current Service Term.
3.3 Termination of the Services
Either party may terminate the Services upon the material breach by the other party and the failure to cure a material breach of the Agreement within thirty (30) days of receiving written notice thereof or by providing notice of non-renewal in accordance with Section 3.2. Wyllo will not be liable to you for reimbursement of fees, cost of cover, or other damages of any kind in connection with any termination or suspension of the Services permitted under this Agreement.
3.4 Effect of Termination
Termination of this Agreement does not relieve you of your obligation to pay all fees, charges, or other payment obligations that have accrued through the date of termination or any minimum fee commitment set forth in any Order Form. Upon termination of the Services, you shall not use or access the Services, and Wyllo’s obligation to provide the Services shall cease.
4. CERTAIN ACKNOWLEDGEMENTS
You acknowledge that Wyllo is relying on the accuracy of information you provide to Wyllo in order for Wyllo to provide the Services to you. We are not responsible for any inaccuracy or error in the Services which results from or is related to any inaccuracy, error, or omission in the information that you provide to Wyllo. You are solely responsible for obtaining and maintaining network connections and telecommunications links from your systems and the systems of Merchant Providers to Wyllo and all problems, conditions, delays, delivery failures as well as all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the Internet.
5. PRICING AND PAYMENT
5.1 Fees
The fees, charges and payment terms for the Services during the Service Term will be set forth in your Order Form. All fees, including any minimum monthly commitment for the Service Term, are non-refundable, unless expressly set forth otherwise in the Agreement. If you subscribed to the Services through a Platform Partner, your agreement with the Platform Partner governs your fees and payment terms for the Services.
5.2 Taxes
All fees are exclusive of any taxes, duties or other amounts, including without limitation, value added and withholding taxes. Any taxes related to the Services will be paid by you unless you present an exemption certificate acceptable to the applicable taxing authorities. For clarity, it is your responsibility to determine any applicable sales, use, value-added, excise, export or other taxes that apply to the sale of your products and services and/or the payments you receive from your customers, and for remitting such taxes to the relevant taxing authorities.
5.3 Payment Default
In connection with any of your payments to Wyllo, you will reimburse Wyllo for any fees or charges incurred by Wyllo due to any method of payment that is declined, including any declined service charge or returned ACH. You will be liable for Wyllo’s costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
5.4 Dormant Accounts
Your account may be deemed as dormant after six (6) months of inactivity, and dormant accounts with no balance may be closed at Wyllo’s discretion. If your dormant account has an available balance, Wyllo may assess reasonable inactive account maintenance fees, which will be deducted from your dormant account’s available balance. Such fees will not exceed the value of any available balance of your dormant account.
6. INTELLECTUAL PROPERTY; LICENSES
6.1 Wyllo’s Intellectual Property
“Wyllo Materials” means the Services, Wyllo Technology, specifications, documentation, and Wyllo systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Wyllo or any of its affiliates, licensors, or subcontractors in connection with the Services or otherwise comprise or relate to the Services, except for Customer Data (as defined below). As between you and us, we own all right, title, and interest, including all intellectual property rights, in and to the Wyllo Materials. Subject to your compliance with this Agreement, Wyllo grants you a personal, non-exclusive, revocable, non-transferable, non-sublicensable license during the Services Term to use the Services and the Wyllo Materials solely to utilize the Services for your internal business purposes in accordance with the terms of this Agreement and any documentation made available to you.
6.2 Usage Restrictions
Except as expressly approved by Wyllo in writing, you may not: (i) transfer any of your rights to use the Services; (ii) sell, rent, lease or share the Services or the results thereof; (iii) permit any person who is not an Authorized User to use or access the Services; (iv) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Wyllo’s software; (v) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; (vi) access all or any part of the Services or information included therein in order to build, improve upon, develop a product or service which competes with the Services; (vii) use the Services other than for the purpose described herein; (viii) load or penetration test the Services in any way that is, or could reasonably be expected to be, detrimental to Wyllo’s ability to provide services to any other merchant or customer; (ix) introduce any malicious code, such as viruses, worms, time bombs, or Trojan horses into the Services; (x) provide Wyllo with any sensitive personal information, including full financial account information, full payment card information, government identification numbers, account passwords, health-related information, information that relates to children under the age of 13 (or in the European Economic Area, under the age of 16), or any information that is deemed “sensitive” or under a “special category” under applicable laws; (xi) use the Services for purposes not contemplated by the Agreement, including for purposes prohibited by the Fair Credit Reporting Act (FCRA) and the Equal Credit Opportunity Act (ECOA), such as a factor in establishing an individual’s creditworthiness or eligibility for credit, insurance, housing or employment in a way that facilitates discrimination or in any other way that may violate applicable law; (xii) benchmark, test the capacity or limitations of, or interfere with the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; (xiii) participate in spidering, screen-scraping, database-scraping, harvesting e-mail addresses, wireless addresses, other contact or Personal Data (as defined in the DPA), or other content made available through the Services, or use any other automatic means of obtaining lists of users or other information from or through the Services, including without limitation any information residing on any server or database connected to the Services; (xiv) circumvent any access or use restrictions, data encryption, or content protection related to the Services, including accessing or using any undocumented software or any software not in strict compliance with any documentation provided to you by Wyllo; (xv) use the Services or provide data to Wyllo in a manner that violates any applicable law, ordinance, regulation or administrative order; or (xvi) permit any other person or entity to do any of the foregoing.
6.5 AI Functions
Wyllo may provide you with access to features and capabilities developed by Wyllo and offered as part of the Services that utilize artificial intelligence, machine learning, or similar technologies developed and maintained by third party providers (“AI Functions”). Wyllo requires our third party providers of artificial intelligence or machine learning models to agree that they will not use your information to train, develop, enhance or improve their models. Wyllo and its licensors exclusively own all right, title, and interest in and to the Al Functions (other than any rights to the underlying artificial intelligence or machine learning technologies owned by third party providers), including all associated intellectual property rights. You are solely responsible for ensuring that you have all necessary consents and permissions for your use of any AI Functions and that any such use is in compliance with applicable law.
6.6 Aggregated Statistics; Analytics
Wyllo may Process Customer Data, data about your End Customers and Authorized Users, and other information regarding your and their use of the Services and create or derive data therefrom by deidentifying, aggregating, combining with other data from other Wyllo customers and users, and/or otherwise Processing such data so that it does not reasonably identify you or any End Customer or Authorized User (“Deidentified Data”). Wyllo may Process Deidentified Data for Wyllo’s lawful business purposes, including without limitation to (i) operate, maintain, troubleshoot, secure, support, and provide the Services; (ii) improve, develop, and enhance Wyllo’s current and future products and Services; (iii) conduct analytics, benchmarking, and trend analyses; and (iv) develop and publish industry insights, reports, and other materials. Wyllo shall own all Deidentified Data and any and all materials, improvements, enhancements, derivative works, compilations, reports, analyses, and/or other developments or improvements to Wyllo’s products and Services that result from, are created using, or are informed by Wyllo’s use of Deidentified Data. Wyllo will not attempt to reidentify Deidentified Data or otherwise use Deidentified Data for the purpose of identifying you or any individual, and will not authorize any third party to do so. Consistent with the DPA, Wyllo will implement and maintain reasonable administrative, technical, and physical safeguards designed to maintain the deidentified and/or aggregated nature of Deidentified Data.
6.7 Feedback
You may choose to, or we may invite you to submit, comments, ideas, or feedback about the Services, including without limitation about how to improve our services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place Wyllo under any fiduciary or other obligation, and that we are free to use the Feedback for any purpose whatsoever without any additional compensation to you or permission from you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Wyllo does not waive any rights to use similar or related Feedback previously known to Wyllo, developed by its employees, or obtained from sources other than you.
6.8 Reservation of Rights
Wyllo reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Wyllo Materials.
7. CONFIDENTIALITY
7.1 Wyllo and you each agree to: (i) maintain the confidentiality of Confidential Information of the disclosing party; (ii) employ safeguards to protect the Confidential Information of the disclosing party from unauthorized use, modification, or disclosure, using at least as great a degree of care as it uses to protect its own information of a similar nature or importance, but in no event using less than a commercially reasonable standard of care; and (iii) limit the disclosure of such Confidential Information to the disclosing party’s directors, officers, employees, contractors, agents and other representatives (“Representatives”) who have a bona fide need to know such Confidential Information and who are bound by confidentiality obligations at least as restrictive as the terms of this Agreement. You further agree to use Confidential Information of Wyllo solely to the extent necessary for you to use the Service or as otherwise expressly permitted by the Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information to the extent required by law, a regulatory authority with jurisdiction over a party, subpoena or court order, provided the receiving party promptly notifies the disclosing party (unless prohibited by such legal or regulatory authority), so that the disclosing party may seek a protective order. Except as otherwise provided in the Agreement, all Confidential Information will remain the disclosing party’s exclusive property.
7.2 “Confidential Information” means all information relating to the disclosing party’s or its affiliates’ business which is disclosed or otherwise revealed to the receiving party by or on behalf of the disclosing party, including but not limited to technical, business, financial and marketing information and the terms and conditions of this Agreement, in each case, regardless of whether marked as confidential and irrespective of the form in which it is disclosed, but excluding any information that:
7.2.1 is at the time of disclosure or becomes after such disclosure publicly available without breach of this Agreement by a receiving party or its Representatives;
7.2.2 was demonstrably in the possession of the receiving party prior to receiving it from the disclosing party or its affiliates or agents and is not known by the receiving party to be the subject of any obligation of confidence of any kind;
7.2.3 the receiving party can demonstrate was developed by it independently and without use of or reference to the Confidential Information of the disclosing party or its affiliates or agents; or
7.2.4 a party receives in good faith without an obligation of confidence of any kind from a third party who is under no confidentiality obligation to the disclosing party or its affiliates.
8. REPRESENTATIONS AND WARRANTIES; COVENANTS.
8.1 You represent and warrant to Wyllo that: (i) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement and grant the rights, licenses, and authorizations you grant under this Agreement; (ii) the name provided by you when you registered or signed up for Services is and continues to be your name or business name under which you sell goods and services and all of the other information provided by you to identify your company is accurate and complete; and (iii) all other information that you provide in connection with the Services is accurate and complete and you will regularly update such information to remain accurate and complete.
8.2 If you are receiving Authentication Service and you are integrating the Services pre-gateway and not providing AVS (Address Verification Services) data from a payment gateway, then you agree that Wyllo may place zero dollar ($0) authorizations on your End Customers’ payment cards in connection with the provision of the Services. You represent and warrant that you have obtained the necessary consents of your End Customers for Wyllo to place such zero dollar authorizations on your End Customers’ payment cards.
8.3 You represent and warrant and agree that at all times during your use of the Services (i) you will use the Services only for activity related to your business and not on behalf of any other person or entity, (ii) you and all activity initiated by you and your use of the Services will comply with all laws and regulations (including applicable privacy laws and regulations) applicable to you, and (iii) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Services.
8.4 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WYLLO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE SERVICES, AND WYLLO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WYLLO MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
9. DATA PRIVACY; PERSONAL DATA PROCESSING
The parties’ rights and obligations regarding the Processing of Personal Data and compliance with Data Protection Laws (as such terms are defined in the DPA) are set forth in the Wyllo Global Data Processing Addendum (“DPA”) provided to you by Wyllo, which is incorporated into this Agreement by reference and made a part hereof.
10. LIMITATION ON LIABILITY
10.1 LIMITATIONS
EXCEPT FOR WYLLO’S OBLIGATIONS UNDER SECTION 11.2 (INDEMNIFICATION BY WYLLO), WYLLO’S AND ITS AFFILIATES’ (AND ITS AND THEIR RESPECTIVE REPRESENTATIVES) TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE IS LIMITED TO THE AMOUNTS WYLLO RECEIVED FROM YOU UNDER THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE DATE ON WHICH A CLAIM IS FIRST ASSERTED, OR IF YOU HAVE ONLY SUBSCRIBED TO TRIAL/BETA SERVICES IN SUCH SIX-MONTH PERIOD, $500. EXCEPT TO THE EXTENT SET FORTH IN THE TERMS AND CONDITIONS OF ANY CHARGEBACK GUARANTEE SET FORTH IN THE APPLICABLE ORDER FORM, WYLLO AND ITS AFFILIATES (AND ITS AND THEIR RESPECTIVE REPRESENTATIVES) WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; OR (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, IN EACH CASE REGARDLESS OF WHETHER WYLLO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. YOU ACKNOWLEDGE AND AGREE THAT THESE EXCLUSIONS AND LIMITATIONS ARE REASONABLE AND ARE REFLECTED IN THE AMOUNT OF WYLLO’S FEES AND CHARGES.
10.2 MAXIMUM EFFECT
THE LAWS OF CERTAIN STATES OR OTHER JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE RIGHTS IN ADDITION TO THOSE CONTAINED IN THIS AGREEMENT. WYLLO’S AND ITS AFFILIATES’ (AND ITS AND THEIR RESPECTIVE REPRESENTATIVES) LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
11. INDEMNIFICATION
11.1 Indemnification by You
You shall to defend, indemnify, and hold harmless Wyllo and its affiliates (and its and their respective Representatives) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”), arising out of or relating to any third-party claim, suit, action, or proceeding (“Third-Party Claim”) arising out of or relating to (i) any actual or alleged breach of any representation, warranty or provision of this Agreement by Customer or any Authorized User; (ii) your use of the Services; (iii) your obligations to pay amounts owed under this Agreement, including without limitation any fees, fines, penalties and attorneys’ fees; (iv) negligence or willful misconduct of your Representatives; and/or (v) all third party indemnity obligations Wyllo incurs as a direct or indirect result of your acts or omissions. Wyllo will have the right to participate in (but not control) the defense of any such indemnified claim, at its cost and expense, using counsel of its choosing. You will not settle any indemnified claim without the prior written consent of Wyllo, not to be unreasonably withheld or delayed.
11.2 Indemnification by Wyllo
Wyllo agrees to defend, indemnify, and hold harmless you and your affiliates (and its and their respective Representatives) from and against any and all Losses arising out of or relating to any Third-Party Claims alleging that the Services infringe or misappropriate such third-party’s US intellectual property rights. The foregoing obligations do not apply if such Third-Party Claim (i) arises from your use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Wyllo, if the Services or use thereof would not infringe without such combination; (ii) arises from any Services for which there is no charge, including Trial/Beta Services; or (ii) arises from your data (including Customer Data), any third-party applications, services or software, or your or an Authorized User’s breach of the Agreement. If such a Third-Party Claim is made or Wyllo anticipates such a Third-Party Claim will be made, you agree to permit Wyllo, at Wyllo’s sole discretion, to (x) modify or replace the Services, or component or part thereof, to make it non-infringing, or (y) obtain the right for you to continue use the Services. If Wyllo determines that neither alternative is reasonably available, Wyllo may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to you. This Section 11.2 sets forth your sole remedies and Wyllo’s sole liability and obligation for any actual, threatened, or alleged claims that the Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
12. CHARGEBACK GUARANTEE
To the extent set forth in your Order Form, you may be entitled to receive a chargeback guarantee in connection with fraudulent or unauthorized charges on qualified transactions (“Chargeback Guarantee”). The terms and conditions for receiving the Chargeback Guarantee from Wyllo, if applicable, will be set forth in your Order Form. For the avoidance of doubt, the Chargeback Guarantee is available only to merchants that have purchased Wyllo Protection with Chargeback Guarantee and is not available in connection with any Service being used on a free trial basis. Wyllo may terminate the Chargeback Guarantee policy or suspend such policy, upon electronic notice, if under the Chargeback Guarantee policy there is a material change in risk to Wyllo, to the transaction risk for transactions processed by Wyllo, or to the data Wyllo receives for the purposes of assessing transaction risk, in each case determined by Wyllo in its sole discretion, provided that Wyllo will use commercially reasonable efforts to provide you with at least 30 days’ prior notice.
13. GENERAL
13.1 Force Majeure
Failure of Wyllo to fulfill or perform its obligations under this Agreement is excused if such failure is caused or occasioned by, without limitation, acts of God, acts of the public enemy, fire, explosion, flood, earthquake, drought, war, terrorism, riot, sabotage, embargo, strikes or other labor disputes (which strikes or disputes need not be settled), compliance with any order, regulation, or request of government, electrical surges and failure of telephone or other communication systems used in performing the Services, or by any other event or circumstance of like or different character to the foregoing beyond the reasonable control of Wyllo including the acts and omissions of third parties not under the control of Wyllo.
13.2 Assignment
Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by you without the prior written consent of Wyllo. This Agreement will be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Any assignment or transfer by you in violation of this Section 13.2 will be deemed null and void. Wyllo may assign this Agreement at its sole discretion without notice to you.
13.3 Notices
Wyllo may provide any notice required or permitted under this Agreement by any reasonable means, including by posting the notice on the Services or Wyllo’s website, sending the notice to the email address associated with your account, or by other electronic communication. Notices provided by posting will be deemed effective upon posting. Notices provided by email or other electronic communication will be deemed effective upon transmission. You are responsible for maintaining a current and accurate email address in your account information and for regularly reviewing the Services and Wyllo’s website for notices. You are responsible for printing, storing, and maintaining your own records of such notices and any other Communications (as defined below) from Wyllo. It is your responsibility to ensure that your email address is accurate and remains current. To ensure that Wyllo is able to provide you with important notices, you must update Wyllo with any change in your e-mail address. Communications will not be distributed in paper unless you contact Wyllo and request a paper version of a particular Communication or other document. Wyllo reserves the right to charge you a handling fee for any notices or other Communication or document that Wyllo physically mails to you at your request or because your e-mail address fails. Any notices and other communications to Wyllo shall be sent to: support@wyllo.ai.
13.4 Severability/Headings
If any provision of this Agreement would be held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, such provision, as to such jurisdiction only, shall be ineffective to the extent of such invalidity, prohibition, unenforceability, without invalidating the remaining provisions of this Agreement, and the validity, legality and enforceability of such remaining provisions shall not be affected in any way thereby. The headings and subheadings of Sections of this Agreement are for convenience of reference only and shall not constitute part of or define or limit any of the provisions of this Agreement.
13.5 Entire Agreement
This Agreement, including its attachments, constitutes the entire understanding between you and Wyllo with respect to this subject matter and supersedes all previous understandings or agreements you and Wyllo with respect to this subject matter.
13.6 Non-Waiver
No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, will constitute a waiver of that or any other right, unless otherwise expressly provided herein.
13.7 Relationship of Parties
The parties’ status hereunder shall be that of independent contractors, and nothing contained herein shall create, expressly or by implication, a partnership, joint venture or other association between the parties.
13.8. Fair Credit Reporting Act
You agree that Wyllo is not a consumer-reporting agency as defined by the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”), and that the Service provided to you hereunder does not constitute “Consumer Reports,” as defined in the FCRA. You will not use the Services to determine any of your customer’s eligibility for any product or service to be used by a customer for personal, family or household purposes. You will not use the Services in whole or in part: (i) as a factor in establishing a customer’s eligibility for credit; (ii) as a factor in establishing a customer’s eligibility for insurance; (iii) for employment purposes; (iv) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority; or (v) in connection with any permissible purpose as defined by the FCRA.
13.9 Governing Law
This Agreement shall in all respects be interpreted, construed in accordance with and governed by the laws of the
State of Delaware without regard to its conflict of law rules.
13.10 Arbitration Agreement
13.10.1 Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the State of Delaware before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages.
13.10.2 Notwithstanding the foregoing, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
13.10.3 You agree that money damages or other remedies at law may not be sufficient or adequate remedies for any breach or violation of, or a default under, Section 7 and that, in addition to all other remedies available to Wyllo and notwithstanding the preceding provisions of this Section 13.10, Wyllo shall be entitled to seek an injunction restraining such breach, violation or default or threatened breach, violation or default and to any other equitable relief, including without limitation specific performance, without bond or other security being required, to the fullest extent permitted by law.
13.10.4 You and Wyllo agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Notwithstanding the foregoing and anything else in this Agreement, individual arbitrations may be consolidated pursuant to applicable JAMS rules, and the JAMS Mass Arbitration Procedures and Guidelines shall apply to all arbitrations to which those procedures apply.
13.12 Survival
Sections 1.6, 3.3, 3.4, 4, 5, 6.6, 6.7. 6.8, 7 – 11, and 13 will survive the termination of this Agreement.
13.13 Subcontractors
Wyllo may, at its sole discretion, engage third party subcontractors in connection with the provision of any part of the Services.
13.14 Electronic Communications
By registering for the Services and accepting the terms of this Agreement, you are consenting to transact with Wyllo electronically. You agree that Wyllo may provide all communications, including without limitation agreements related to the Services, amendments or changes to such agreements, or any policies, disclosures, notices, transaction information, statements, responses to claims, and other End User communications that Wyllo may be required to provide to you by law (collectively, “Communications”) in electronic format, subject to Section 13.3 (Notices).
13.15 Public Announcements
Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Wyllo may, without Customer’s consent, use Customer’s name, logos, and other indicia for Wyllo’s marketing purposes, including in its lists of current or former customers in promotional and marketing materials. In your Order Form on by email to support@wyllo.ai, you may decline such use of your name, logos, and other indicia or grant such use only with your prior approval.
13.16 Export Regulation
The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the software or technology included in the Services available outside the US.
