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PAYMENT SERVICES

​​​​PAYMENT SERVICES AGREEMENT

 

This Payment Services Agreement (the “PSA”) is between Triib, Inc. (“Triib“) and the Party identified in the Triib Subscription Confirmation Email (hereafter “Order Form”) (the “Customer”) sent by Triib to the Customer that references this PSA, and shall be effective with respect to each Order Form as of the latest date set forth in the Order Form (the “Effective Date”). Each Order Form, the Triib Privacy Policy (https://www.triib.com/privacy), the Terms of Use (https://www.triib.com/terms-of-use), the Terms of Service (https://www.triib.com/terms-of-service), and this PSA (including its Exhibits and their Attachments), and the Data Processing Addendum (https://www.triib.com/dpa) (the “DPA”) are referred to as the “Agreement” and shall govern the relationship between the Parties relating to the Triib Services (as defined below) expressly identified in the applicable Order Form. Each of Triib and Customer are referred to sometimes herein separately as a “Party” and together as the “Parties”. No other terms or conditions, including terms or conditions contained in any purchase order later exchanged between the Parties as a mechanism for processing and approving payments, shall govern the relationship between the Parties.

 

DEFINITIONS

Capitalized terms shall have the meanings set forth below:

  • “Customer” means any person, business, or entity that subscribes to (or otherwise accesses or uses) Triib Services via an Order Form.  Customers have a direct business relationship with Triib.
  • “User” means any individual who interacts with Triib Services, including Triib mobile applications, and individuals who book appointments or classes, purchase services, and otherwise interact with the Triib Software Services as a result of Customer’s subscription or access to, or use of, the Triib Services.  Customers and their representatives are also Users.
  • “User Agreements” are legal contracts between Customers and Users.
  • “Triib Services” means all websites hosted on the Triib platform, related web sites, downloadable software, social media pages, email systems and messages, mobile applications (including tablet applications), and other services provided by Triib, and all other written and oral communications between Triib and our Customers and Users.

 

  1. SERVICES
  1. Triib’s Payments Services:  The “Payment Services” consist of the payments of User accounts, merchant account processing, chargeback processing, User communication and any other services performed by Triib for the Customer in order to facilitate payments or refunds from Users to such Customer. Our Payment Services are limited to the processing of payments or refunds on active User Agreements which have been properly entered in the Triib Services. Triib is not a financial institution, as defined by the Electronic Funds Transfer Act, 15 USC 1693 et seq.  Customer acknowledges and agrees that: (a) any transactions (each, a “Transaction”) are between the Customer and the User and not with Triib; (b) Triib is a third-party service provider and payment processor facilitating Transactions for Customer and is not a party to any Transaction; (c) Triib is not a buyer or a seller in connection with any Transaction; and (d) Triib is not responsible for and does not control any aspect of the services provided by Customer. The Parties hereby acknowledge that Triib originates, relays, collects, analyzes and relays information generated in connection with these payments. Triib will process the Transaction on behalf of Customer through the appropriate network, including without limitation credit card networks, and deposit the funds with Customer. Customer acknowledges and agrees that all Transactions are subject to, and Customer shall comply with, all applicable laws as well as all applicable standards provided by Triib or its service providers from time to time. Without limitation of any other remedy Triib may have, Triib may suspend and/or terminate the Payment Services and/or this Agreement, if the Customer does not comply with the applicable standards set by Triib or its service providers.
  2. Stripe: Payment processing in connection with the Payment Services are provided by Stripe, Inc. (“Stripe”) and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”  https://stripe.com/us/ssa).  By agreeing to this PSA or continuing to operate as a Customer on Triib, the Customer agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. The customer also agrees that terms in the Stipe Services Agreement that apply between it and Stripe will also apply between it and Triib with respect to Triib’s Payment Services, and Customer agrees to be bound as such. As a condition of Triib enabling Payment Services through Stripe, the Customer agrees to provide Triib accurate and complete information about the Customer and its business, and the Customer authorizes Triib to share such information and Transaction information related to Customer’s use of the Payment Services.

 

  1. TERM AND TERMINATION
  1. Agreement: This Agreement shall become effective upon the Effective Date and shall continue for the length of time in which any Order Forms hereunder remain in effect, unless or until terminated pursuant to Section 2.2, 2.3, or 2.4. 
  2. Termination for Breach: Either Party may terminate this Agreement immediately upon written notice to the other Party in the event that the other Party materially breaches this Agreement and fails to cure such breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within 30 days’ written notice thereof. 
  3. Termination Upon Bankruptcy, Insolvency, Etc: Either Party may terminate this Agreement immediately upon written notice to the other Party after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such other Party which proceeding or petition has not been dismissed, vacated, or stayed within thirty (30) days after it was first filed.
  4. Termination at Will: Both Triib and Customer may terminate this agreement at will, provided they have given the other party a minimum of 30 days written notice.  Written notice may be delivered via email to support@triib.com or the email address of the Customer provided in the Order Form. Customer acknowledges that any payments that come due between the notice date and the termination date (at least 30 days more) will be paid by the customer and no refunds will be given for amounts due.
  5. Suspension of Service: If Customer fails to pay any amount invoiced after receipt of notice following the invoice of such amount being due and payable, Triib may suspend the Triib Services (including the Payment Services) to Customer, in addition to any of its other rights or remedies, without liability to Customer until such amounts are paid in full. If necessary to protect the security of the Triib Services or one or more of its customers (including Customer), Triib may immediately suspend the Triib Services to Customer, without liability to Customer, until such a threat to the security of the Triib Services or to one or more of its customers (including Customer) is resolved.
  6. Effect of Termination: Upon any termination of this Agreement, each Party shall promptly pay all amounts due and remaining payable hereunder.
  7. Survival of Obligations: The provisions of Sections 3, 4, 5, 6, 7, 8, as well as any other terms that by their nature should survive, shall survive termination or expiration of this Agreement.

 

  1. AUTHORITY TO ACT 

Customer expressly authorizes Triib to: (a) provide the Payment Services described herein; (b) establish and maintain an account with Stripe or any other payment processor as needed; (c) receive sales data from the Customer for purposes of processing payments; (d) execute documents on the Customer’s behalf, and take any other action we deem reasonably necessary to carry out to primary purpose of the Agreement; (e) access the Customer’s designated bank account(s) for purposes of receiving and accepting payments from Users, together with any adjustments, chargebacks and fees paid on the Customer’s behalf; and (f) transfer billed amounts to a Triib account, as designated by us, to help facilitate the transactions contemplated by the Agreement. The authority granted herein shall be in the nature of a power of attorney, which shall be deemed created, is irrevocable and is coupled with an interest. 

 

  1. PAYMENTS AUTHORIZATION

Although Triib is not responsible for the content of the Customer’s User Agreements, Triib hereby requires that the Customer include a mandatory “Authorization for Preauthorized Payments” provision (the “Provision”), which Triib will provide to the Customer from time to time. The Customer shall print this provision in its User Agreements. The Provision gives Triib the legal right and authority to electronically draft Customer’s Users’ accounts. Failure to include the required authorization provision in the Customer’s User Agreement may result in Payment Services being delayed or terminated. Customer agrees to indemnify, defend and hold Triib harmless for any liability associated with Customer’s failure to include the Provision in its User Agreements. 

 

​​​​5. PROCESSING ERRORS

  1. The Customer may only use the Triib’s Payment Services (“Payment Services”) for legitimate Transactions with their End Users. The Customer is responsible for their relationship with their End Users. The Customer confirms that they are solely responsible for the nature and quality of the products or services the Customer provides, and for delivery, support, refunds, returns, and for any other ancillary services they provide to their End Users.  Triib provides Payment Services to the Customer but has no way of knowing if any particular purchase, sale, donation, order,refund, or other transaction (each a “Transaction”) is accurate or complete, or typical for their business. The Customer agrees that they are responsible for knowing whether a Transaction initiated by their End User is erroneous (such as an End User purchasing one item when they meant to order another) or suspicious (such as unusual or large purchases). If the Customer is unsure if a Transaction is erroneous or suspicious, the Customer agrees to research the Transaction and, if necessary, contact their End User before fulfilling or completing the Transaction. The Customer agrees that they are solely responsible for any losses the Customer incurs due to erroneous or fraudulent Transactions in connection with their use of the Payment Services including as may occur from incorrect use of the Payment Services. 
  2. The Customer’s Triib account on the platform (hereafter “Account”) contains details of charges, charge history, refunds, and other activity. Except as required by Law, the Customer agrees that they are solely responsible for reconciling the information in the Account generated by their use of the Payment Services with their records of customer Transactions, and for identifying any errors. The Customer agrees to review their Account and immediately notify Triib of any errors. Triib will investigate any reported errors and ones we ourselves identify, including any errors made by Triib or Stripe, and, when appropriate, attempt to rectify them by crediting or debiting the bank account identified in the Account. However, the Customer should be aware that their ability to recover funds they have lost due to an error may be very limited or even impossible, particularly if Triib or Stripe did not cause the error, or if funds are no longer available in the bank account associated with their Account. For Transaction errors, Triib will work with the Customer and Stripe to correct a Transaction error in accordance with current procedures in Stripe. If the Customer fails to communicate an error to Triib for its review without undue delay and, in any event, within 60 days after the error is discovered, the Customer waives their right to make any claim against Triib or Stripe for any amounts associated with the error. 

 

  1. CHARGEBACKS

A chargeback is a reversal of a credit card transaction, which is usually initiated by the card issuer at the request of the cardholder (here, a User). Chargebacks usually occur due to fraudulent activity on the card, due to customer disputes, or from other authorization issues. TRIIB SHALL HAVE NO LIABILITY FOR PAYING CUSTOMERS USER CHARGEBACKS, RETURNS, REFUNDS, OR OTHER FEES OWED. Customer expressly acknowledges that these payment obligations are the Customer’s and the Customer’s alone, regardless of the health of Customer’s business or the prevailing economic conditions in the state or country in which the Customer operates. 

 

  1. RESERVE ACCOUNT

If the Customer’s return ratio on chargebacks or returned items gets too high, as determined solely and exclusively by us, or if there is a substantial change in the Customer’s business or sales practices, then Triib reserves the right to fund a reserve account to be held and administered exclusively by Triib for purposes of paying out User refunds, returns, or chargebacks (the “Reserve Account”). The Customer expressly authorizes Triib to create a Reserve Account consistent with this provision. Triib reserves the right to restrict access to the Triib Services, including without limitation User Data, until such time as the Customer’s Reserve Account has been sufficiently funded to cover potential liabilities, as determined solely and exclusively by us. 

 

  1. SECURITY INTEREST

The Customer hereby grants to Triib a security interest in the Reserve Account, all Transactions (including future Transactions), any rights to receive credits or payments under this Agreement, and all deposits and other property of the Customer possessed or maintained by Triib on Customer’s behalf, and any and all proceeds of the foregoing in order to secure payment of any of the Customer’s obligations under this Agreement. The Customer will execute, deliver, and pay the fees for any documents Triib requests to create, perfect, maintain or enforce this security interest. 

 

  1. PRESALE

Customer must notify Triib immediately if the Customer is selling memberships or services to Users but is not yet open for business. The Customer hereby acknowledges that each state and country may have specific laws regulating pre sale activities; it is the Customer’s responsibility to ensure compliance with all applicable laws. Triib reserves the right to review documents evidencing proof-of-concept or proof-of-intent-to-open-a-business before Triib provides Payment Services during presale. The adequacy of the documentation provided shall be in Triib’s sole and absolute discretion. 

 

  1. CUSTOMER’S DUTIES

Customer expressly consent and agree to: (a) grant Triib access to and use of User Agreements created, made available or sold through the Triib Services, including any associated EFT/ACH draft; (b) make complete and full delivery of all purchases to us (if tangible merchandise); (c) be responsible for safeguarding the security and privacy of User information, and be solely responsible and liable therefor; (d) be responsible for any contract issues involving User payment responsibilities, including but not limited to, calling the bank or other financial institution to verify the accuracy of account numbers, routing numbers, transit number, names and/or addresses; (e) maintain PCI-DSS compliance standards; and (f) comply with all applicable federal, state, foreign and local laws, rules and requirements, including but not limited to the Truth-in-Lending Act, all Federal Trade Commission requirements pertaining to holder in due course regulations, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, state consumer protection laws, the General Data Protection Regulation and any applicable state specific health spa statute. User Agreements shall remain effective until the later of the expiration of the payment term for the User Agreement, the expiration of the statute of limitations period for reporting such agreements to regulatory agencies, or until the User Agreement is considered in default or deemed to be a delinquent account. Customer authorizes Triib to immediately suspend all access and services for Users whose accounts fail to properly draft. Customer expressly agrees to indemnify, defend and hold Triib and/or any of its affiliated companies, harmless from and against any liability (including reasonable attorneys’ fees and court costs) resulting from Customer’s failure to comply with these duties, or Customer’s breach, or alleged breach, of the Agreement.  

 

  1. USER AGREEMENTS

The Customer is responsible for making sure that the contents of the Customer’s User Agreements comply with

all applicable state, federal or foreign laws. Most states have statutes which regulate the fitness industry, including requirements about what provisions must be in health club contracts. It is recommended that Customer consult an attorney about these laws. Our assistance with the Customer’s User Agreements will be limited to answering questions about formatting and the use of Triib Services. It shall be the Customer’s responsibility to manage its User Agreements once loaded to the Triib Services, including ensuring that they are properly implemented. Cancelled User accounts will be notated as such in the Triib Services. 

 

  1. NON-DEFAULTED ACCOUNTS

Only non-defaulted User Agreements are considered active in the Triib Services. Customer must decide when an User account has gone into default. Defaulted User accounts will be marked as inactive in the Triib Services. Absent clear instruction from the Customer, Triib may set User Agreements as in default upon 90 days without some form of payment. Customer is responsible for notifying Users about default terms in its User Agreements. To the extent permitted by applicable law, Customer expressly authorizes Triib, its affiliates, subsidiaries and subcontractors, to communicate with Customer or its Users by phone, email or SMS text for purposes of inquiring about any matter related to the Payment Services, including making inquiries about past due balances. Neither Triib, nor our affiliates or subsidiaries, is or should be considered a debt collector as defined by federal or state laws. Defaulted User accounts may be sent to a third-party collections company for debt servicing. Customer agrees to indemnify, defend and hold Triib, our affiliates or subsidiaries, harmless for any liability resulting from its communications with Users regarding payments on their account. 

 

  1. PERMISSIBLE TRANSACTIONS

Customer may only use Triib to process a Transaction by a User through a legitimate, bona fide sale of the Customer. Triib may not be used to process a Transaction for User, or otherwise transfer money between a User and Customer, that does not directly result from a User’s purchase of Customer’s services. Customer may not use Triib to provide cash advances to Users or to facilitate the purchase by Users of cash equivalents (e.g., travelers’ checks, money orders); provided however, that Users may use Triib to facilitate the purchase by Users of a gift certificate or stored value card generally made available by Customer. Triib may establish general practices and limits concerning use of Triib, including without limitation individual or aggregate transaction limits on the dollar amount or number of Transactions during one or more specified time periods. Customer may not use Triib to process Transactions in connection with an illegal transaction or the sale or exchange of any illegal or prohibited goods or services or any of the other business activities set forth in Attachment A.

 

  1. TAXES

If in a given calendar year Customer receives: (i) more than US$20,000 in gross amount of payments and (ii) more than 200 payments, Triib and/or its processor may be required by law to report to the Internal Revenue Service (“IRS”) Customer’s name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments Customer received in a calendar year, and the total dollar amount of the payments Customer received for each month in a calendar year.

 

  1. INFORMATION

Customer acknowledges and agrees that Triib and its payment service providers may: (a) collect and store all information (including personal information) necessary to receive payments from Users, and (b) run authorization and verifications processes in connection with the payment method selected by Users. Customer agrees to provide all information requested by Triib for the provision of a Stripe account or any other payment processor as needed (including as may be necessary in an application therefor). Customer represents and warrants all such information is true, accurate, not misleading and complete. Triib and its service providers will use commercially reasonable efforts to protect all such information but DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT SECURITY BREACHES WILL NOT OCCUR WITH RESPECT TO ANY INFORMATION COMMUNICATED THROUGH STRIPE, THE INTERNET, OR ANY COMMON CARRIER COMMUNICATIONS FACILITY. NEITHER TRIIB NOR ITS SERVICE PROVIDERS SHALL HAVE ANY LIABILITY OF ANY KIND TO CUSTOMER OR MEMBERS OR USERS WITH RESPECT TO USE OF STRIPE OR ANY INFORMATION PROVIDED IN CONNECTION THEREWITH.   The Parties acknowledge and agree that, notwithstanding this Section 15, the DPA will apply to the processing of all personal data (as defined in the General Data Protection Regulation) of natural persons located in the European Economic Area or United Kingdom by Triib on behalf of Customer pursuant to this Agreement.  In the event of a conflict between this Section 15 and the terms of the DPA, the DPA will prevail. 

 

  1. CONSENT TO CONTACT

Customer is solely responsible for ensuring that its Users have provided their express written consent to receiving communications about their payments and transactions, including from Triib, whether by phone, SMS text, or email. This applies to all forms of communications, whether informational or promotional in nature, and whether made through the use of an autodialing service. Customer expressly agrees to indemnify, defend and hold Triib, and any of its subsidiaries or affiliates, harmless against any liability resulting from Customer’s violation of state, federal or foreign laws governing communications with Users or prospective customers. 

 

  1. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT

Any controversy or claim arising out of or relating to this PSA, or the breach thereof, shall be settled in accordance with the process described in Section 12 of the Triib Terms of Service  ( https://www.triib.com/tos ).

 

  1. GOVERNING LAW; VENUE

    The Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to conflict of laws principles. You expressly agree to submit to the exclusive personal jurisdiction of the state courts for  

 

​21. PAYMENTS INQUIRIES

    Payments inquiries may be directed to us at support@triib.com.

 

​THIS AGREEMENT IS ENTERED INTO KNOWINGLY AND VOLUNTARILY. I UNDERSTAND AND EXPRESSLY CONSENT TO THE TERMS EXPRESSED HEREIN.

 

Attachment A

 

  • Advanced payments greater than one (1) year (any product or service).
  • Any adult products and services including but not limited to:
    • Audiotext (Phone Sex)
    • Web based sexually oriented chat
    • Videotext (images via the Internet)
    • Sexually oriented dating services
    • Companion/Escort services
    • Prostitution
    • Adult toys, bookstores, strip clubs and other misc adult entertainment, services or products
  • Any products on the internet containing graphic or nude content
  • Any illegal activity (i.e., child pornography, bestiality, etc)
  • Aggregators/Third Party Payment Processors- falling outside MasterCard/Visa and any approved Payment Processor approved program requirements (See Payment Facilitators/Internet Payment Service Providers under High Risk/Tier II segment of the policy).
  • Airlines.
  • Any illegal products/services or providing peripheral support of illegal activity.
  • Bidding fee auctions (a/k/a penny auctions).
  • Business/Investment opportunities operating as Get rich quick schemes (including Internet search/ad optimization).
  • Cash advances (except regulated Financial Institutions which are acceptable).
  • Cash gifting.
  • Chain letters.
  • Charities (without evidence /proof of 501( C ) (3) status).
  • Check cashing establishments.
  • Collection agencies or firms involved in recovering/collecting past due receivables.
  • Companion/Escort services.
  • Credit card protection or identity theft service.
  • Credit repair/Restoration.
  • Cruise lines.
  • Currency exchanges.
  • Debt consolidation or reduction services.
  • Drug paraphernalia of any form.
  • Embassy, Foreign Consulate, or other Foreign Government.
  • Essay mills/Paper mills.
  • Extended warranty companies.
  • Foreclosure protection/guarantees.
  • Government grants.
  • Herbal smoking blends and herbal incense.
  • How to books, newsletter, subscription or on-line access for ANY industry shown in the Unqualified list.
  • Illegal gambling including Internet/MOTO gambling.
  • Lifetime subscriptions (any product or service).
  • Lottery clubs.
  • Mail order brides and international match-making services.
  • Medical benefits packages (including discount medical cards).
  • Marijuana dispensaries (and affiliated services).
  • Merchants engaged in an activity prohibited by the Card Brands.
  • Merchants or Principals listed on MATCH.
  • Merchants, Principals or related entities previously identified by any Card Brand for deceptive practices or any other violation of Card Brand rules.
  • Merchants physically located outside the United States (offshore acquiring).
  • Merchants in a Card Brand excessive chargeback or fraud program or merchants with chargeback or fraud rates over one percent (1%).
  • Merchants that use tactics to evade Card Brand excessive chargeback or fraud monitoring programs.
  • Merchants up-selling or cross-selling products of other merchants and then sharing the cardholder data with the third party or receiving cardholder data from third parties (Data Pass).
  • Merchants splitting the sale across multiple transactions.
  • Merchants offer rebates or special incentives (i.e., free gift, prize, sweepstakes or the winning of a contest as an inducement to purchase a product/service).
  • Merchants primarily engaged in the sale of stored value cards in a card not present environment.
  • Merchants engaged in any form of deceptive marketing practices including but not limited to:
  • Hidden disclosure
  • Bogus claims and endorsements
  • Pre-checked opt-in boxes
  • Refund/Cancellation Avoidance
  • Money services businesses.
  • Money transfer services.
  • Mortgage/Loan modification.
  • Mortgage reduction services.
  • Multi-level marketing or pyramid/Ponzi schemes where the primary objective is the solicitation of new distributors and not the sale of products/services.
  • Negative renewal option following a free or low-cost purchase (including but not limited to payment for shipping only model, free or discounted trial periods, etc.) for the following industries:
  • Nutraceuticals (e.g. acai berry or health related teas or drinks etc)
  • Pseudo-pharmaceuticals (e.g. weight-loss, anti-aging, muscle building, sexual stimulant supplements, colon cleansers, detox products, hCG, HGH-like substances etc)
  • Beauty/Cosmetic products (e.g., teeth whitening products, anti-wrinkle creams, tanning sprays etc)
  • Medical devices and products (e.g. glucose strips etc)
  • Sale of prescription drugs.
  • Sale of tobacco products or other smoking products (including e-Cigarettes/smokeless cigarettes).
  • Sale of firearms and ammunition including black powder (mail/telephone order, internet).
  • Quasi Cash.
  • Replicas/Counterfeit goods-designer name products.
  • Substances designed to mimic illegal drugs (including herbal smoking blends and herbal incense).
  • Travel-Outbound Telemarketing (MCC 5962)-including Discount Travel Clubs, membership or Subscriptions to Travel Services or Newsletters where subscribers may select pre packaged trips.
  • Virtual Currency (that can be monetized, resold, converted, traded into physical/digital goods and services outside the virtual world).