JOOR Pay and Reach Services Agreement for JOOR Members
Version: 05-16-2022
This Agreement contains disclaimer of warranty, limitation of liability, and arbitration clauses.
Parties: There are three parties to this Agreement. One of them is you. âYouâ or âMerchantâ will refer to the business that sells products through JOOR, has entered into a JOOR Membership Agreement, and has applied to receive the payment service branded as JOOR Pay. Another party is JOOR, Inc., a Delaware Corporation with an office at 1239 Broadway, 9th Floor, New York, New York 10001, which will be referred to as âJOOR.â The third party is With Reach UK Ltd., a United Kingdom private limited company, with a registered office at c/o Stevens & Bolton LLP, Wey House, Farnham Road, Guildford, Surrey, England, GU1 4YD (âReachâ). There are no other parties to this Agreement, and there are no third party beneficiaries to this Agreement. Each of the parties to this Agreement is an independent contractor with respect to the others. None is engaged in a joint venture or partnership with any other, and none has a fiduciary relationship with any other.
The Effective Date of this Agreement is the date on which Reach issues a Merchant ID (âMIDâ) to you. If Reach does not issue a MID to you, then this Agreement will not become effective. This issuance of a MID to you by Reach will indicate JOOR and Reachâs acceptance of this Agreement, even without a signature on this document by JOOR or Reach.
Description of Services; Merchant of Record. The JOOR platform is an e-commerce platform through which You may sell your Products, subject to the JOOR Membership Agreement, and JOOR pricing agreements, which you must separately enter into with JOOR. JOOR now offers a solution called JOOR Pay. To bring you JOOR Pay, JOOR has become an authorized reseller of certain services offered by Reach. Reach and its subsidiaries and affiliated entities, collectively doing business as Reach, provide e-commerce transaction solutions, including merchant of record services, payment localization services, transaction fraud detection services, and services ancillary to these (the "Reach Services") delivered via a proprietary payment software and hardware system and associated protocols (the "Reach System"). As a component of providing the Reach Services, Reach has a direct relationship with multiple global payment providers and receives the proceeds from customers of Merchants (âBuyersâ) purchasing products from Merchant via JOORâs platform, with the result that Reach is responsible to further process and complete the payment transaction. Provision of these services requires Reach to act as Merchant of Record (âMoRâ) in the completion of any such sale. In its role as MoR, Reach will (i) be the commercial agent and seller of the products purchased by Buyers from Merchant via JOOR (âProductsâ); (ii) assume the risk of fraud for the payment transaction, subject to the limitations of the Reach Fraud Guarantee Solution, described below; (iii) where required by applicable law, take legal title to the products; (iv) through its contracted service providers, provide certain services necessary to complete the payment transaction and final sale to the Buyer; and (v) settle funds for the transaction to You (less certain fees as further described below).
Onboarding and Monitoring.
- You will be subject to an underwriting and onboarding process that may be jointly facilitated by JOOR and Reach, but only Reach (not JOOR) will have final decision-making authority in whether to accept you for the Reach Services and assign account credentials to you. You will be asked for identifying information, including potentially personally identifying information about your DocuSign Envelope ID: DA06ACF6-9E39-4C94-9A38-74E87D41AEB3 Schedule C â Merchant Addendum 33 principals and business, which information may be shared with third parties, including third party service providers of Reach (e.g., payment processors and/or financial institutions) or credit bureaus. You agree to provide truthful and complete information on an ongoing, as-needed basis, and to inform JOOR and Reach of any material changes to that information. You understand and agree that this information may be shared with other parties on a business necessity basis to vet your suitability to receive the Reach Services.
If Reach accepts you to receive the Reach Services, Reach will assign a unique MID to you. You must make commercially reasonable efforts to protect the confidentiality of the MID and prevent unauthorized access to the same. Further, you will not permit anyone else to use the MID. You must submit only bona fide transactions to Reach. You must not use your MID, JOORâs platform, or the Reach Services to engage in any unlawful, fraudulent, or illegal activities, or use the Reach Services other than for their intended purpose (e.g., for foreign exchange benchmarking). You agree to abide by any restrictions set by Reach and/or JOOR on the use of your MID, including limits on transaction ticket amounts and/or volume.
Following onboarding, you understand that you will be subject to ongoing transaction monitoring by Reach, as may be required by Reachâs banking partners, payment processing partners, and/or payment card networks. Further, Reach may calibrate an appropriate limit on the size of transactions and number and/or percentage of chargebacks that may be associated with your MID. You also understand that transaction activity that is deemed unacceptable by payment processors, payment card networks, and/or banking partners of Reach could result in the termination of the Reach Services to you, in whole or in part, in either Reach or JOORâs sole discretion, without recourse against either Reach or JOOR.
Reach provides the Reach Services in collaboration with certain third-party services providers, including, without limitation, financial institutions and payment processors. To the extent any of Reachâs third-party services providers have promulgated terms and conditions relevant to the Reach Services that would apply to you, you must abide by the same.
You acknowledge that the ability of Reach to act as MoR is subject to Payment Card Industry (PCI) standards and acquiring bank requirements. You agree to facilitate and take all reasonably required steps to support Reachâs ability to ensure that such requirements are met at all times.
Pricing; Flow of Funds.
Pricing. The cost to you to use JOOR Pay will be as separately set forth in the JOOR Pricing Agreement between you and JOOR.
Flow of Funds. You authorize Reach, as MoR, to accept funds from Buyer(s) for the purchase of your Products through JOORâs platform. Reach will remit those funds to such bank account(s) as you may designate, less the fee charged to you by JOOR for your use of JOOR Pay, and less any fees associated with chargebacks or other debits as described in Section 10 below. Reach shall settle the fees charged to you by JOOR for the use of JOOR Pay directly to JOOR. Reach will not bill you directly for the use of the Reach Services.
Settlement. Unless otherwise agreed between you and Reach, settlement of transaction proceeds in your Home Currency shall occur twice weekly on set days of the week. Unless otherwise agreed between you and Reach, "Home Currency" means the currency of the country where your entity that agrees to these terms is located. Reach will, within 2 business days following receipt of cleared funds for a transaction, remit settlement to you, but in no event shall Reach be required to settle transaction proceeds to you if it has not received cleared funds for a transaction. You acknowledge that Reach has no control over the timing of the receipt of cleared funds from its third-party service providers, but Reach will use reasonable efforts to expedite settlement as much as possible. Disputes around specific transactions may add significant time to settlements of specific transactions.
Your Representation and Warranty to Reach. You represent and warrant that you are authorized to instruct Reach to collect certain payment information from Buyers purchasing your products, to collect payments from such Buyers, and to transfer the collected payments due from such Buyers to one or more bank accounts designated by you. You acknowledge that the transfers of these collected payments are payments authorized under the terms of this Agreement, and discharge Reach from the obligation to further remit those amounts beyond those accounts so designated by you.
Applicable Taxes
VAT on Transactions. When required by applicable law as it applies to the Reach Services and Reach acting as MoR, Reach shall charge, collect, and remit sales tax or value-added tax ("VAT") on your transactions to the appropriate authorities; otherwise you shall have the sole responsibility to collect, and remit to the applicable authorities, applicable VAT in connection with the sale of your products. If Reach collects sales VAT on your transactions, (i) the VAT collected on those transactions shall be withheld by Reach from settlement to you; and (ii) a VAT invoice shall be issued to you at the end of each month showing the amount of VAT collected on transactions for that month and the total amount Reach withheld for that month.
Registration. You warrant and agree that, if you do not subscribe to Reach's sales tax collection and remittance service as part of the Reach Services, you shall, at your own cost, complete and maintain all necessary tax registration requirements in any territory where you are required to charge, collect, pay over, or remit any sales tax. If you collect and remit sales tax from a Buyer for a transaction you shall retain, for the period required by applicable tax authorities, proof of remittance to each respective tax authority of any tax sum collected by Reach on your behalf and thereafter settled to you as the responsible party for payment to a tax authority. In the event that Reach requires proof of your sales tax registration or remittance, you will promptly provide to Reach any necessary documentation that Reach requests from you.
Taxes on Fees. All fees and other amounts in this Agreement are stated exclusive of any tax. You are responsible for the payments of all taxes, duties, levies, or charges of any kind imposed by any federal, provincial, state, or local government entity on fees payable for the JOOR Pay or Reach Services.
Limitation of Tax Liability for Reach. Unless Reach is required by applicable law to collect and remit sales tax on a transaction or unless you subscribe to Reach's sales tax collection and remittance service as part of the Reach Services, you will remain fully liable for the collection and remittance of any applicable sales taxes on a transaction using the Reach Services. If you subscribe to Reach's sales tax collection and remittance service as part of the Reach Services:
Reach's liability shall be limited to the amount of the sales tax actually collected by Reach for a transaction, plus any additional amounts and penalties, if applicable, that are due to Reach's error in calculating the amount of applicable sales tax;
any adjustments to applicable sales tax amounts, penalties assessed, or the cost of any audit by a tax authority due to an error in product data provided by you to Reach or to JOOR are your sole responsibility; and
neither Reach nor JOOR will bear any liability for errors in data provided by you and you agree to fully indemnify Reach and JOOR for any costs, tax reassessments, or any other amounts arising from such errors.
Limitation of Tax Liability for JOOR. In no event shall JOOR be responsible or liable to Reach or to you for any applicable sales tax, VAT, or other tax on a transaction completed through the Reach Services.
Communications to Buyers. JOOR will inform Buyer(s) that they are transacting with Reach in their purchase of Products and will clearly display each of the Reach logo and current Reach's Buyer Terms and Conditions and Refund Policy, as amended from time to time and attached to this Agreement as Schedule A and Schedule B, as well as Reach's current Privacy Policy, or link to it, and contact information for Reach, on the JOOR checkout page. You agree that you shall not do anything that will obscure, block, or otherwise hinder the Buyer's access to the Reach Buyer Terms and Conditions. You may have your own refund policy with the Buyers of your products. However, as between you and Reach, if the terms of your refund policy conflict with Reach's Refund Policy in Schedule B, to the extent of the conflict Reach's Refund Policy will prevail.
Customer Service. Reach will provide direct customer support to Buyers for payment-related inquiries. Other than these inquiries, neither Reach nor JOOR (unless otherwise agreed between you and JOOR) has any customer support obligation to your Buyers. You agree that, as between you and Reach, you are solely responsible for, and Reach has no responsibility nor liability for, the following circumstances, and you agree to fully indemnify Reach from any claims arising out of or related to the following:
timely shipment of products purchased from you and any fees or charges arising from any delayed or cancelled orders;
all fees, including refund fees, and additional customs duty, tax, and shipping charges for inaccurate orders, including errors in size, colour, type, model, version, or brand. Such orders shall be returned or destroyed at your preference and, you shall be responsible for the full cost of replacement of the order;
the quality or suitability of products sold through your website or any claims arising thereof;
any data presented on your website to the Buyer including, but not limited to, product descriptions, pricing, shipping, and applicable duty and tax;
any value-added tax ("VAT") applicable, or the remittance thereof, to the sale of products on your website unless Reach has such responsibility to collect VAT at the point of sale.
Refunds. Subject to the terms of the Refund Policy contained in Schedule B, if Reach processes a refund initiated by the Buyer through the Reach System within 90 days of the original Transaction, the refund will be processed at the same foreign exchange rate applicable on the date of the original Transaction. For refund Transactions processed through the Reach System on a date that is more than 90 days from the original Transaction, such refund Transactions will be processed at the prevailing foreign exchange rate on the date of the refund Transaction.
Chargebacks and Fraud Detection Services.
Definition of Chargeback. A chargeback means the reversal of a payment transaction by a Buyer or an issuing bank or financial institution.
Fraud Guarantee Service. As part of your subscription to JOOR Pay, and Reachâs provision of the Reach Services, you will be provided with Reachâs Fraud Guarantee solution. Pursuant to this solution, Reach will monitor transactions submitted through the Reach System to prevent fraudulent transactions from being processed. Reach will be responsible for direct financial loss from a chargeback, but only if the chargeback results from fraudulent activity and is subject to the following conditions:
You must take commercially reasonable steps to promptly report to Reach any unauthorized or fraudulent transaction of which you are aware no later than 30 days following the occurrence of the transaction. If you know of a fraudulent transaction and fail to report it to Reach, Reach will not be liable for any aspect of a later chargeback associated with that transaction; and
You must use the shopper identification protocols and other security protocols that are part of the Reach Services or the JOOR platform and shall not, nor attempt to, disable, interfere with, fake, compromise, hack, or work around these protocols.
Failed Transactions under the Fraud Guarantee Program. Notwithstanding anything to the contrary in this Agreement, Reach, through its fraud detection engine, may decide to collect funds on a transaction, but upon review, and in its discretion, may decide to cancel such transaction or implement a return due to actual or suspected fraud or due to suspicious or irregular transactions. In such a case, the transaction shall be classified by Reach as a "failed" transaction. Reach shall make available for review all failed transactions through the Reach System, and you may have the option to allow or reactivate any such failed transaction. Reach assumes no risk or liability for any resultant chargeback from a failed transaction so allowed by you, and as between the Parties, Reach shall bear the cost of any fees associated with any such transaction, unless such transaction results in a chargeback, in which case you will be solely responsible for any and all chargeback liability, including all associated fees.
Non-Fraud Chargebacks. Reach is not liable to you for, and the Reach Fraud Guarantee Program does not cover, any chargebacks for reasons other than fraudulent activity. You will bear all financial liability associated with chargebacks initiated for any reason other than fraud.
Flow of Funds. Reach may deduct from its settlements of funds to you all liabilities allocable to you for chargebacks, including the amount of the transaction, associated taxes, and any assessments or fees associated with the chargeback. Alternately Reach may, in its sole discretion, deduct these amounts from any reserve it has on hand associated with your MID, but it shall not be obligated to make any such deductions against a reserve instead of against your transaction proceeds.
JOOR. Under no circumstances will JOOR be liable to you for chargebacks or any fees, assessments, or other liabilities associated with a chargeback. To the extent not covered by Reach under the Fraud Guarantee Program, chargebacks are completely your responsibility.
Reserve.
While you are receiving the Reach Services. You may be required, at Reachâs discretion, acting reasonably, to maintain or fund a reserve with Reach for the purpose of managing Reach's ongoing risk of refunds and chargebacks for your transactions (a "Reserve"). The amount of such reserve required shall be calculated by Reach, and may be a percentage of your total processed transaction volume, held for a certain period of time. The Reserve is subject to periodic adjustment in the discretion of Reach, acting reasonably, to mitigate any risks to Reach from your transactions. The ongoing requirement for, and amount of, such Reserve shall be reviewed by Reach on at least a quarterly basis. You will be given 10 daysâ notice of any requirement by Reach to fund a Reserve and must fund the Reserve by the end of this notice period. Reach may, at its sole option and in its sole discretion, fund a Reserve with your transaction proceeds.
Upon termination of the Reach Services. Reach may, at its option, require you to keep your account available for any open settlements, chargebacks, and other adjustments following termination of this Agreement for any reason. Additionally, Reach may withhold an amount from final settlement to you to cover chargebacks and other adjustments following the termination of this Agreement (a "Termination Reserve"). Reach will, acting reasonably and considering your transaction history using the Reach Services, determine the amount of the Termination Reserve (if required) and the conditions under which Reach will release the Termination Reserve to the Merchant. However, in no event will Reach hold the Termination Reserve for longer than 365 days following termination of this Agreement.
Security Interest. To secure your performance of your obligations under this Agreement, you hereby grant Reach a security interest on any Reserve or Termination Reserve funds and agree to execute any necessary documents or instruments to give effect to such security interest.
JOOR. You will have sole responsibility to satisfy any request from Reach to fund a Reserve and shall have no right to demand or require that JOOR do so on your behalf, in whole or in part. Should JOOR opt to fund your Reserve, or should JOOR separately be required by Reach to fund a Reserve for you to enable your continued receipt of the Reach Services in the event that you are unable to fund the required Reserve, you shall be immediately liable to reimburse JOOR for any amounts funded to a Reserve on your behalf.
Adverse Merchant Material Change. Reach reserves the right, in its sole discretion but subject to this Section 12, to suspend or revoke your MID in the event of a material change relevant to your status, business model, product catalogue, nature or channel of trade, or any other change which would have a material adverse effect on your ability to meet or maintain the qualifications, criteria, and terms of use reasonably set by Reach or its third-party service providers (an "Adverse Merchant Change"). In the event of an Adverse Merchant Change, Reach will promptly notify both JOOR and you, and you will have 30 days, or such shorter period of time as may be imposed by Reach's thirdparty service providers, to remedy the Adverse Merchant Change (the "AMC Cure Period"). Notwithstanding your ability to cure provided in this Section, if you have (3) or more Adverse Merchant Changes in a 12-month period, Reach may, at its sole discretion, immediately suspend or terminate your MID without recourse for you against Reach or JOOR.
Intellectual Property. Any and all intellectual property or proprietary rights in the Reach System, Reach Services, and the Reach trademark, are held by or vested, and shall remain vested, in Reach or its third-party service providers, as may be applicable. You shall not misuse, copy, alter, or modify any part of the Reach System, Reach Services or the Reach trademark, nor decompile, decipher, disassemble or reverse engineer the Reach System, Reach Services or other Reach intellectual property, or any part thereof, nor attempt to do any of these things.
Disclaimer of Warranties. NEITHER JOOR NOR REACH MAKES ANY WARRANTIES REGARDING THE SERVICES EITHER IS PROVIDING UNDER THIS AGREEMENT, RESPECTIVELY, CONCERNING THE OPERATION OF THE JOOR PLATFORM, OR THE REACH SERVICES. NEITHER JOOR NOR REACH WARRANTS THAT ITS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EACH OF JOOR AND REACH PROVIDES ITS SERVICES TO YOU ON A STRICTLY âAS ISâ BASIS.
Limitations of Liability. UNDER NO CIRCUMSTANCES SHALL REACH OR JOOR BE LIABLE TO YOU OR ANY BUYER FOR ANY DAMAGES, CLAIMS, LIABILITIES OR OTHER AMOUNTS RELATED TO OR CONNECTED WITH ANY OF THE FOLLOWING, EVEN IF THE LOSSES WERE REASONABLY FORESEEABLE AND REGARDLESS IF THEY ARISE IN NEGLIGENCE, BREACH OF CONTRACT, OR TORT (PROVIDED HOWEVER THAT THIS LIMITATION SHALL NOT APPLY TO CLAIMS ARISING FROM THE WILLFUL MISCONDUCT OF REACH OR JOOR):
CLAIMS RELATED TO THE MERCHANTABILITY, QUALITY, OR SAFETY OF A PRODUCT;
LOSS OF BUSINESS PROFITS, REVENUES, OR ANTICIPATED SAVINGS;
BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA, OR DATA BREACHES;
ANYINDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES, INCLUDING LIABILITY TO ANY THIRD PARTIES OR END USERS;
AND/OR
ANY SERVICES PROVIDED BY THIRD-PARTY SERVICE PROVIDERS.
IN ALL EVENTS, YOUR MAXIMUM RECOVERY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BROUGHT AGAINST REACH OR JOOR, WILL BE LIMITED COLLECTIVELY TO NO MORE THAN THE LAST 12 MONTHSâ WORTH OF FEES YOU PAID TO RECEIVE JOOR PAY, AS FACILITATED BY THE REACH SERVICES, BEFORE THE EVENT GIVING RISE TO THE ALLEGED BREACH. IF YOU DID NOT USE JOOR PAY FOR AT LEAST 12 MONTHS, THEN THE MAXIMUM AMOUNT OF YOUR RECOVERY WILL BE CALCULATED BY TAKING THE AVERAGE OF YOUR MONTHLY FEES OVER THE PERIOD OF YOUR USE AND MULTIPLYING THAT NUMBER BY 12.
Suspension; Termination.
For Convenience on Notice. Either you or Reach may terminate your use of the Reach Services for any reason on 30 daysâ written notice to the other party at any time. Termination of the Reach Services means you are no longer eligible to use JOOR Pay. You will be liable for all fees incurred through your last use of the Reach Services, including for chargebacks, refunds and other liabilities associated with transactions that occurred before termination, even if the liabilities themselves accrue after termination.
Termination by JOOR; Effect on Other Agreements. JOOR may terminate this Agreement, your access to and use of its platform, and any other agreement between you and JOOR, if you breach of any provision of this Agreement and fail to cure that breach on or before the 10th day following your receipt of written notice from JOOR, or such shorter time as is set forth herein.
Termination by Reach. Reach may terminate this Agreement and your access to, and use of, the Reach Services if you breach of any provision of this Agreement and fail to cure that breach on or before the 10th day following your receipt of written notice from Reach, or such shorter time as is set forth herein.
Termination or Suspension for Cause. Either Reach or JOOR may immediately terminate or suspend, in its or their reasonable discretion, all or any part of the services provided under this Agreement, without liability to either Reach or JOOR, on written notice to you in the event of any of the following:
Either Reach or JOOR reasonably believes that you have violated any provision of this Agreement and that breach remains uncured;
Either Reach or JOOR believes that you have materially breached any applicable laws, or any additional terms provided by Reachâs third-party services providers that apply to you;
Either Reach, Reachâs third-party service providers, or JOOR reasonably believe that you or your transaction activity present a reputational or security threat to Reach, JOOR, or Reach's third-party service providers;
Either Reach or Reachâs third-party service providers reasonably believe that your transaction activity presents an unreasonable risk for fraud or chargebacks;
Reach experiences a cessation of service from any of its third-party service providers, whether temporary or permanent, in such case Reach may, at its sole option, suspend or terminate all of the Reach Services or the portion of the Reach Services affected by such a cessation of service.
Amendment of this Agreement. Reach and JOOR may need to amend this Agreement from time to time. You will be provided with 60 daysâ advance written notice of any amendment and that notice may be provided electronically. If you object to the amendment you may terminate this Agreement, on written notice to Reach and JOOR without penalty to you during the 60-day notice period, and your access to the Reach Services will be discontinued at the end of the 60-day notice period. If you do nothing and continue using JOOR Pay and the Reach Services, you will be deemed to have accepted the amendment to this Agreement. However, some amendments to this Agreement may be necessary due to a change in applicable law or other circumstances beyond Reach or JOOR's control. Necessary amendments will be identified as such and, while every effort will be made to give you as much notice as practicable of these changes, 60 daysâ notice may not be possible and you will not have the option to terminate this Agreement following notice of a necessary amendment.
Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA. Excluding the one exception identified immediately below, the parties agree that any dispute arising out of or related to this Agreement (including the arbitrability of any matter and the interpretation of this provision) shall be submitted to binding arbitration before the American Arbitration Associationâs (âAAAâ) in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Delaware, or to the extent no suitable AAA location exists in Delaware, arbitration may go forward in New York, New York; but in all instances, Delaware law shall govern the interpretation of this Agreement. The arbitration shall be conducted in English before a single arbitrator to by mutually selected by the parties. If the parties cannot agree on an arbitrator, one shall be appointed by the AAA. Each party shall bear its own attorneysâ fees and costs in arbitration. The arbitrator shall have jurisdiction to decide any matter a court could decide, except that the arbitrator shall not have the ability to award any damages or impose any liabilities that are barred by this Agreement. The parties agree that in no event shall any arbitration initiated under this Agreement take the form of a class or collective proceeding, and each party expressly waives its right to participate in a class or collective action. The award of the arbitrator shall be final and binding, and shall be enforceable in any court of competent jurisdiction. In one limited exception to the partiesâ otherwise binding agreement to arbitrate, either party may initiate a proceeding against the other in a court of competent jurisdiction for the sole purpose of applying for injunctive relief. However, each party agrees that, other than ruling on an application for injunction relief, no court will have jurisdiction to decide any other matter between them. The decision of either party to apply to a court for injunctive relief shall not affect or limit the ability of either party to pursue arbitration.
Relationship of this Agreement to Other Agreements between You and JOOR. You have separately entered into a JOOR Membership Agreement and JOOR Pricing Agreements. These agreements are only between you and JOOR, and Reach is not a party to them. Those separate agreements are unaffected by your entry into this Agreement with Reach and JOOR.
Severability. The terms of this Agreement are separate, severable, and divisible. If any one provision is deemed invalid or unenforceable, it shall be deemed modified to the minimum extent necessary to be valid and enforceable, or if it cannot be so modified, it shall be severed from the Agreement without affecting the validity of the remaining terms.