This Agreement includes and hereby incorporates by reference the following
important agreements, as they may be in effect and modified from time to
These agreements are collectively, with this Agreement, called the “Terms
The Marketplace is operated by PBW (“PBW”), which reserves the right to make changes to this Agreement at any time. Changes to this Agreement are effective when the changes are posted to the Marketplace. Your use of the Marketplace will constitute your agreement to the new Agreement terms. It is your responsibility to review the changes and decide if you want to continue to use the Marketplace. If you do not accept the new terms, you must not access or use the Marketplace or Services after the date on which the terms are effective. Changes to the Agreement may occur without notice to you.
If you agree to the terms of this Agreement on behalf of an entity or agency, or in connection with providing or receiving services on behalf of an entity or agency, you represent and warrant that you have the authority to bind that entity or agency to the Agreement and agree that you are binding both you and that entity or agency to the Agreement. In that event, “you” and “your” will refer and apply to you and that entity or agency.
THIS USER AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Therefore, in consideration of the mutual covenants of the Parties and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows:
Definitions . Terms in the preamble have their assigned meanings and each of the following terms has the meaning assigned to it.
“Abandoned Property Claims” has the meaning give to it in Section 34.3 of this Agreement.
“Account” has the meaning give to it in Section 3.1 of this Agreement.
"Agreement" or "Merchant Agreement" means this Merchant Agreement, which may be amended at any time and without notice by PBW.
"Appointment Time" means the specific date and time of scheduled Order.
“Beauty Product” or “Product” means a specific product or each product sold or advertised for sale by a merchant on the Marketplace.
“Booked and Paid Order” means an Order that an End User has paid for and remitted payment through the Marketplace.
“Buyer” or “Customer” means an End User utilizing the Marketplace to procure Products or Services.
"Cancellation Period" means the advance notice prior to the scheduled appointment time required to effect an appointment cancellation without cancellation fee. The cancellation period is determined by each Merchant during profile setup.
"Chargeback" refers to a charge drawn against PBW, its Managed Accounts, or Merchant as a result of a dispute by Buyer, card-holder, or Customer through our Payment Processor.
"Effective Date" means the date Merchant registers for a Merchant Account with PBW.
"End User" or "Buyer" means users of the Services other than Merchants; whose intention is to book appointments and or purchase Beauty Products.
“End User Profile” has the meaning give to it in Section 3.4 of this Agreement.
"European Economic Area" or "EEA" means all member states of the European Union from time-to-time, together with all countries who are part of the European Free Trade Agreement ( "EFTA"), being Iceland, Liechtenstein, and Norway as at the date of this Agreement.
"Managed Accounts" refers to Merchant’s Stripe Connect or Paypal subaccount or any other third-party payment processing vendor.
“Marketplace Fee” means any fee changed by PBW for the use of the Marketplace (e.g. fees on Booked and Paid Orders).
"Merchant" means service provider using the Services to promote and sell services and products to End Users.
“Merchant Marks” has the meaning give to it in Section 28 of this Agreement.
"Merchant Offering" means the Merchant Services being delivered from Merchant at a specified date and time.
“Merchant Products” or “Products” or means list of beauty products offered by Merchants to the End Users.
"Merchant Services" or “Services” means list of services offered by Merchants to the End Users.
"Order" means an End User scheduling an appointment, purchasing a voucher, purchasing beauty products, purchasing a package of Services, or purchasing a membership entitling Consumer to Merchant Services or discounts on Merchant Services; Order can also mean a Merchant scheduling an appointment for a consumer for Merchant Services; and, for certain Merchants, taking payment for the Merchant Services through the PBW Pro Marketplace.
“Order Contract” has the meaning give to it in Section 2.2 of this Agreement.
“Payment Method” has the meaning give to it in Section 25.1 of this Agreement.
"Payment Processor" for the purposes of this Agreement refers to Stripe, Paypal and other Payment Processors supporting PBW with the provision of Payment Services.
"Payment Service" refers to all credit or debit card processing services, including charging, refunding, reversing, and adjusting transactions as well as all payouts and disbursements provided by PBW and its Payment Processors.
“Payment Service Fee” means any fee charged by a Payment Service provider for use of their service.
“Paypal” has the meaning give to it in Section 9.5(a) of this Agreement
"PBW Application" means mobile application providing access to PBW Pro Marketplace.
“PBW IP” has the meaning give to it in Section 32.2(d) of this Agreement.
"PBW Platinum" means a solution for Merchants to manage their calendars, appointments, orders and selling their products available through PWB Pro Website.
"PBW Pro Marketplace" or “Marketplace” means comprehensive marketplace owned by Personal Beauty & Wellness Inc., available through PBW Website and PBW Application.
"PBW Website" or “Website” or “Site” means internet website www.personalbeautywellness.com providing access to PBW Pro Marketplace.
"Personal Beauty & Wellness Inc." or "PBW" means the legal entity being sole owner of PBW Website, Platform and PBW Application, doing business as “PBW”.
"Personal Beauty & Wellness" means Personal Beauty & Wellness Inc., its subsidiaries, affiliates, associates, and branches.
"Platform" refers collectively to PBW Application, PBW Website, PBW Pro Website, any links contained within or otherwise available through external hyperlinks within PBW Application, PBW Website, PBW Pro Website.
“Promo Code” has the meaning give to it in Section 18.2 of this Agreement.
"Refund" refers to any transaction reversed by Merchant, or in some cases, the Client or PBW.
"Reserve Account" refers to a Stripe or Paypal holding account managed by Stripe or Paypal.
"Service Fee" means a fee charged by PBW to Merchants for the use of the Services.
"Site Services" mean services provided by Personal Beauty & Wellness Inc. to Consumers through PBW Marketplace and to Merchants through PBW Pro Marketplace.
"Stripe" has the meaning give to it in Section 9.5(a) of this Agreement.
“Taxes” has the meaning give to it in Section 17.1 of this Agreement.
"Total Remittance Amount" means the aggregate amount due to Merchant when Consumer makes payment for the Merchant Services through the application for a Booked and Paid Order equal to: (a) the total amount collected by PBW from the Consumer for such Booked and Paid Order; less (b) Service Fee.
Purpose and Use of PBW Pro Marketplace
Description of Services . Merchants offer Merchant Services and allow End Users to book appointments through PBW Pro Marketplace at www.personalbeautywellness.com or the PBW Application. PBW Pro provides Merchants with a venue to post availability of Merchant Services, Products and for End Users to learn when these services are available, book an appointment for the desired Service, purchase Beauty Products and, when applicable, to book appointments and pay for Merchant’s Services through PBW Pro Marketplace. Through the Marketplace, PBW provides Merchants with various services, and features that facilitate online scheduling of appointments for services, purchasing of Beauty Products, communication between Merchants and End Users, and customer relationship management tools.
Order Contracts . PBW merely provides the Marketplace for Merchants and Buyers, each an Order Party, together the Order Parties, to find and transact directly with each other (the “Order”). PBW does not introduce Buyers and Merchants. PBW is not involved in the actual Order between Merchants and Buyers and does not and is not authorized to act in any way as agent of either Order Party. Through the Marketplace and Services, Merchants may be notified that a Buyer may be seeking the services they offer, and Buyers may be notified of Merchants that may offer the services they seek; at all times, however, End Users are responsible for evaluating and determining the suitability of any Order, Buyer, or Merchant on their own. If End Users decide to enter into an agreement to participate in a transaction (an “Order Contract”), the Order Contract is directly between the Order Parties. PBW is not a party to any Order Contract.
Merchants using PBW Pro may have their business and Merchant Services listed in the PBW Pro Marketplace by default, but they may delist their profile from the PBW Pro Marketplace at any time through PBW account settings.
Marketplace End Users authorize PBW to use Merchant's PBW calendar details for the following purposes:
Merchant Availability. Access Merchant's calendar in order to determine Merchant's availability and appointment time preferences, and to write appointments and update customer data in Merchant's calendar held in PBW.
Client Marketing. PBW may access Merchant client contact information in order to market to those clients on the Merchant's behalf. PBW will market to Merchant's clients only on Merchant's behalf. If a Merchant's client is not currently a PBW End User, but creates a PBW account in order to use the Marketplace Services, including booking an appointment or setting appointment reminders, the Buyer becomes a shared customer of both PBW and the Merchant, and PBW may contact the customer without restriction about services offered by PBW or other PBW merchants.
Customer Data. Certain PBW features may require importing customer data including customer names, appointment history, past services or products purchased, historical revenue and customer contact information such as email and phone number. By approving this Merchant Agreement, you allow PBW to import and use this data on the Marketplace.
Registration . To access and use certain portions of the Marketplace and the Site Services, you must apply for and be granted an End User account (an “Account”). Subject to this Agreement and applicable Terms, by using the Marketplace after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Marketplace, you agree to abide by this Agreement and the other Terms of Service. PBW reserves the right to decline a registration to join the Marketplace or to add an Account for any lawful reason, including supply and demand, cost to maintain data, or other business considerations. If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts on behalf of yourself and the company.
General Account Eligibility . PBW offers accounts to Merchants to sell Products and Services (“Merchant Account”) and to Buyers to purchase Products and Services (“Buyer Account”). To register for an Account or use the Marketplace and Site Services, you must, and hereby represent that (a) all required registration information you submit is truthful and accurate; and (b) you are a legal entity or an individual 18 years or older who can form legally binding contracts.
Merchant Account Eligibility . PBW offers the Marketplace and Site Services to Merchants for your business purposes only and not for personal, household, or consumer use. To register for a Merchant Account, you must, and hereby represent that you (a) have or are an employee or agent of and authorized to act for an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Marketplace and Site Services for business purposes only; and (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of Merchant Services.
Account Registration . To register for an Account to join the Marketplace, you must complete an End User profile (“Profile”), which you consent to be shown to other End Users and, unless you change your privacy settings, the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Marketplace or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness.
Username and Password . When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You authorize PBW to assume that any person using the Marketplace with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Marketplace if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.
When a Consumer books an Order on PBW Pro Marketplace, details of the Merchant Services will be sent to the Consumer and Merchant by PBW electronically. The Consumer may then execute the Order for Services or Beauty Products from the Merchant.
Merchant is considered the seller of the Merchant Services described in the Order.
Information Transfer. Merchant agrees to provide all information and materials as may be reasonably required by PBW in connection with Orders conducted on, through, or as a result of use of the Marketplace. PBW has the right to suspend or terminate any Merchant’s account if the Merchant fails to provide the required information and materials, per section 19 of this Agreement.
Marketplace Fees. For all items sold through its marketplace, PBW charges a fee that will be a percentage of the sale price, per the Fee Schedule (“Marketplace Fee”). The Merchant of an item or service is responsible for paying this fee. This fee will be automatically deducted from the earnings you receive from a sale. Fees may change at any time without notice. The fee in effect on the date of sale of the item shall govern the transaction. By listing an item for sale in our marketplace, you agree to pay the applicable fees and any collection costs related to non-payment of fees. All fees are payable upon demand via your bank account. By listing an item for sale on the Marketplace, you authorize PBW to debit your bank account for amounts due.
Required Communications. PBW requires you to provide timely support to the Buyers of the Marketplace. Merchants must respond to all Buyer communications within forty-eight (48) hours of receiving the communication. PBW maintains the right to void an order and refund a Buyer and/or may terminate Merchant’s Account if Merchant does not respond to a Buyer within 48-hours.
Packaging and Shipping . You bear all responsibility and cost for any and all packaging, shipping, and handling of the Product to Buyers. You also bear all responsibility and liability for the proper packaging and shipping of the Product to Buyers. PBW shall be held harmless from any and all Buyer claims resulting from damaged or unusable Products. The remedy for Buyers who receive damaged Products or Products unfit for purpose shall be as prescribed in section 5.4(c).
Shipping Deadlines . All orders should be shipped to Buyers within forth-eight (48) hours. All orders must reach the Buyer within the quoted time frame of 6-8 business days (standard shipping) and 3-4 business days (expedited shipping). Failure to provide shipment notification within four (4) days may cause your transaction and any associated payment to be canceled at PBW’s sole discretion. As part of the Agreement you are contracted to adhere to, it is your responsibility to deliver the items contained within an Order to the Buyer and you waive your ability to win any disputes if the Buyer says the package did not arrive due to improper shipping or packaging.
Refunds . If a Buyer receives Merchant Services that are less than the value of the amount paid for the Order, Merchant shall issue a credit note and process a refund in the amount equal to the difference between the value of the service and the payment. Merchant may not impose any extra or additional fees or charges that contradict or otherwise limit the terms of any Order.
Orders. Merchant shall honor all Orders that are scheduled using PBW. Merchant must honor the terms of the Order, including any listed Appointment Time and or Beauty Products.
Expiration. Merchant is solely responsible for supplying all Merchant Services specified in the Order. Merchant is responsible for accurately listing any applicable Expiration Date for each Order. If Merchant omits an Expiration Date for the Order, Merchant shall accept the Order at any time. Additionally, Merchant shall honor Orders beyond their stated expiration dates as may be required under applicable law.
Order Terms. Merchants are solely responsible for all of the terms and conditions of the transactions conducted on, through or as a result of use of PBW Pro Marketplace, including, without limitation, terms regarding payment, cancellations, fees, and applicable local taxes.
Receiving In-home Services . As the recipient of in-home beauty, personal trainer and spa Services, you agree to assume certain responsibilities. When you purchase in-home Services, you agree to comply with any rules or requirements applicable to the Service purchased and that you are made aware of, including as part of any confirmation email (the “Requirements”). Whether or not there are Requirements, you agree to: (a) create in your home (or other space where our third party experts are invited to perform the Services) a safe, clean, and reasonably comfortable workspace that is free of conditions that would make it difficult for the experts to perform their jobs ; (b) provide a workspace that has access to bathroom facilities and is in close proximity to an electrical outlet and a sink with hot and cold running water; and (c) refrain, and cause other individuals present in your household to refrain, from any speech, conduct, or personal displays that a reasonable person would find offensive, intimidating, hostile, harassing, indecent or abusive while our third party experts are present. If you have pets, you agree to confine all of your pets to a room where our third-party experts will not be working. If you have a child or children under the age of 13, you agree that childcare (provided by someone other than you and our third-party expert(s)) will be present. We reserve the right to terminate or refuse Services to anyone at any time in the event you do not fulfill your responsibilities as set forth in this Section or if an expert feels unsafe or uncomfortable with her or his in-home work environment or conditions for any reason.
Cancellation . You may cancel any appointment by providing notice no less than 24-hours before the scheduled appointment. Failure to provide notice within 24-hours will result in Buyer being billed for the full amount of the Service booked. We reserve the right to cancel free Services at any time for any reason. No credits or promotional value adjustments will be made in the event we cancel a free Service. If we cancel or terminate a paid Service for any reason, we may, in our sole discretion, issue you a refund of any fees pre-paid for such Service.
Third Party and Affiliate Websites and Applications. PBW may publish or promote any information acquired under this Agreement, including calendar availability, business information, service descriptions and prices, on any third-party websites or mobile applications. PBW may also make it possible to book and/or pay for Merchant Services through an embedded widget or Application Program Interface (API) on third-party websites or mobile applications. PBW is not obligated to promote all Merchant Services using these third party and affiliate websites and mobile applications.
Profile Updating. PBW may add, edit, rephrase, or update information, including Services, variations of Services, pricing updates, staff member names, photographs and other information, on a Merchant's PBW profile, so long as PBW reasonably believes the information is accurate. PBW may use information available on Merchant's own website, Facebook or other social media pages, or third-party marketplaces, including Yelp and other consumer review websites, or received through PBW. Merchants may request PBW to stop updating their profiles by emailing email@example.com.
Deactivation from PBW Pro Marketplace. A Merchant can, at any time, deactivate the marketing of their Services in the PBW Pro Marketplace via the Merchant’s account settings.
Termination. PBW may terminate the publication or promotion of the Merchant Services at any time according the section 19 of this Agreement.
Liability. PBW neither represents the Merchant or the Buyer in any Order, nor does it control — and is not liable to or responsible for — the quality, safety, lawfulness, or availability of the Products or Services offered on the Marketplace or the ability or inability of the Merchants to complete a sale or the ability of buyers to complete a purchase. Merchant acknowledges and agrees that it is fully assuming the risks of conducting any purchase and sale transactions through PBW Pro Marketplace or Merchant Services, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to Merchant Services that are the subject of transactions booked through PBW Pro Marketplace. Each Merchant agrees that PBW shall not be liable or responsible for any damages, claims, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any of the foregoing risks.
Indemnification. In the event that any user has a dispute with any party to a transaction, the Merchant agrees to release and indemnify PBW (and its agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such dispute and transaction.
PBW provides Payment Services that allow Merchants to accept credit and debit card payments from Buyers and receive bank account transfer deposits for Orders. A PBW Account is required to use Payment Services. Other identifying information as outlined in this Agreement may be needed to use PBW Payment Services.
Payment Processers . Through selected Payment Processers, PBW provides Merchants with the following services: collecting card-based payments from End Users, issuing refunds, reversals, adjustments, and chargebacks, electronic disbursements to your Bank Account and Reserve Account (if required by the Payment Processor), withholding PBW fees, verification, underwriting, and reporting.
Authorization . PBW, as outlined in this Agreement, is authorized to directly manage your Account and Account Activity with our Payment Processor to provide Payment Services in accordance with the Terms of the Payment Processor. NEITHER PBW NOR THE PAYMENT PROCESSORS ARE A BANK OR A MONEY SERVICE BUSINESS (“MSB”), NOR DOES EITHER PARTY OFFER BANKING OR MSB SERVICES. In addition, we do not assume any liability for the Products or services purchased using our Payment Service.
User Consent . It is PBW’s responsibility to obtain End User consent to be billed in compliance with applicable legal requirements and all applicable card network payment rules (collectively, the “Payment Networks”), including Visa Europe Ltd., Visa U.S.A., Inc., (collectively “Visa”) and MasterCard International Incorporated (“MasterCard”).
Availability . PBW Payment Services are available in the following countries:
Terms . By using the PBW Payment Services, Merchant agrees to the terms of this Agreement and the Payment Provider’s terms. Merchant must provide the Payment Provider with any information and documents required to setup an account.
At any time, PBW or Payment Processor may determine that you are incurring excessive Chargebacks (five or more Chargebacks within 30 calendar days). Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in additional controls and restrictions to your use of the Payment Services, including without limitation:
changes to the terms of your Reserve Account;
increases to your applicable Service Fees;
delays in your Payout Schedule; or
possible suspension or termination of your account and services provided by PBW. The Payment Networks may also place additional controls or restrictions as part of their own monitoring programs for merchants with excessive Chargebacks.
Authorization for Handling of Funds
Authorization . By accepting this Agreement and using PBW Payment Services, you authorize PBW to receive, deposit, hold, and disburse funds on your behalf for all credit card transactions processed via PBW and the Payment Services, including transactions for appointment bookings, products, vouchers, and packages. You also authorize PBW to hold funds in a Reserve Account pending disbursement to you in accordance with the terms of this Agreement. Furthermore, you authorize PBW to debit, withdraw, and reverse disbursements as defined below.
Security Interest . You grant PBW a security interest in and lien on any and all funds held in any Reserve Account or other Managed Account, and also authorize us to make any withdrawals or debits from your Account, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your PBW Account. You agree you are not entitled to any interest or other compensation associated with the funds held in the Reserve Account pending settlement to your designated Bank Account, that you have no right to direct that Reserve Account, and that you may not assign any interest or grant any security interest or lien on the funds in the Reserve Account other than to PBW as outlined directly above.
Payment Service Rules . You agree to submit any and all refunds and adjustments for returns of your Products and services through PBW Payment Services to the Consumer’s card in accordance with the terms of this Agreement and Payment Service Rules. Payment Service Rules require that you will:
maintain a fair return, cancellation or adjustment policy;
disclose your return or cancellation policy to customers at the time of purchase;
not give cash refunds to a consumer in connection with a card sale, unless required by law; and
not accept cash or any other item of value for preparing a card transaction refund.
Exclusions . Payment Service Fees and Marketplace Fees are non-refundable on Booked and Paid Orders. Refunds for Booked and Paid Orders made through the Marketplace using the Payment Services will not include any Payment Service Fees and any Marketplace Fees.
Exact Amount . Full refunds must be for the exact amount of the original transaction including tax and other charges. Please note that for Booked and Paid Orders, full refunds will not include Payment Services Fees or Marketplace Fees. The refund amount may not exceed the original sale amount, except by an amount equal to any reimbursements to End User for postage costs incurred for product returns. Refunds processed through PBW Payment Services must be submitted within sixty (60) days of the original transaction and in all cases, within three (3) days of approving the Consumer’s refund.
Rights . PBW reserves the right to disapprove and cancel any refund request submitted for processing through the Payment Services if your Reserve Account balance is zero or negative, if you otherwise have any outstanding balance owed to PBW, for any reason outlined in this paragraph, or at PBW’s reasonable judgement on security breach or fraud risks or other concerns.
Merchant’s Liability for Refunds, Chargebacks, and Other Reversals
Merchant authorizes PBW to withhold payments or debit Merchant’s Reserve Account, bank account, or any other payment instrument for the full amount of any reversed transaction, including without limitation transactions that are:
refunded by you or PBW;
disputed by a Buyer directly with PBW, or charged-back;
reversed for any reason by Payment Processor;
not authorized or we have any reason to believe are not authorized;
allegedly unlawful, suspicious, or in violation of the terms of this Agreement;
adjusted to correct mistakes or errors;
relating to balances owed to you to cover PBW’s attorney fees, court costs, or collection costs associated with your account.
Merchant assumes all liability for Chargebacks and any applicable fees charged to PBW for Chargebacks.
You acknowledge that you are also responsible for any penalties or fines imposed on us or directly on you by any Payment Service or financial institution as a result of your activities.
In the event a Chargeback is successfully contested and is returned to PBW, PBW will credit Merchant’s account with the full returned amount less any applicable Service Fees as defined in this agreement.
Merchant agrees to cover all attorney’s fees, court costs, and collection costs (including those imposed by third-party debt collectors) associated with any PBW collections efforts in the event Merchant refuses or is unable to pay any balance owed to PBW (including Chargebacks, refunds, or other withdrawals as outlined in this agreement). Merchant acknowledges and agrees that PBW may employ independent third-party debt collectors or law firms assist with the collection of all balances owed.
In the event Merchant accrues any balance owed to PBW and our Payment Processor, all debts to PBW shall take priority.
Merchant agrees to assist PBW when requested to investigate any transactions processed through, or related to, their account.
Merchant agrees to produce records that assist PBW in contesting Chargebacks, including email correspondence, proof of service, testimony, or other records as needed. Records must be received prior to established response deadlines, typically within fifteen (15) days after the Chargeback is issued. Merchant’s failure to provide documentation in a timely manner may result in an irreversible Chargeback.
If PBW needs to investigate or resolve any pending Consumer dispute filed with us related to your PBW account, or if PBW has reason to expect a Chargeback or payment dispute between a Buyer and a Merchant resulting from an Order or Orders under your Account, PBW reserves the right to temporarily withhold funds from your Reserve Account or other deposits until PBW reasonably believes, at our sole discretion, that the risk of receiving a Chargeback or dispute has passed.
All transactions, deposits, refunds, and other Merchant activities are subject to review for risk and compliance purposes. In-progress deposits to Merchant’s bank account may be delayed or postponed if necessary.
Should PBW need to investigate or resolve any pending dispute related to your Account, PBW may defer payout or restrict access to Merchant’s funds while the investigation is ongoing. PBW may also defer payout or restrict access to Merchant’s funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
Registering to Receive Payouts
In order to use PBW Payment Services for your Account, PBW may request identifying information as needed to administer payouts, verify your identity, and comply with applicable regulations (such as Know Your Customer laws), or in accordance with our Payment Processor and Payment Network’s policies.
You may choose to open an Account as an individual (sole proprietor) or as a company or other business organization. If you register as a company or business, you must also provide information about an owner or principal of the business. You must be authorized to act on behalf of the business and have the authority to bind the business to this Agreement.
In order to register a business to use the Payment Services, you must agree to the terms of this Agreement on behalf of the business. You understand that by registering for Payment Services, you are also registering for Payment Provider Account, and that you are simultaneously providing your information to PBW, and to Payment Provider.
As part of your registration, you must provide the legal name under which you do business (which may be the business's legal name or a "doing business as” name).
PBW requires that you provide accurate business identification information as required in your country. This may be an Employer Identification Number (“EIN”), Tax ID, and/or social security number (“SSN”), date of birth, and your business’ Bank Account number and routing number. YOUR EIN, TAX ID, OR SSN MUST BE THE NUMBER ASSOCIATED WITH YOUR REGISTERED BUSINESS AND BE THE SAME NUMBER ON FILE WITH YOUR BUSINESS BANK ACCOUNT. The provided SSN and date of birth must be the same as the registered business owner or Bank Account holder. PBW is not responsible for delays in payouts, or payouts sent to the wrong account resulting from incorrect information provided during registration or activation. PBW offers the Marketplace to Merchants for your business purposes only. PBW reserves the right to suspend or terminate your account if you have provided inaccurate, untrue, incomplete information, or if you refuse to provide your proper business information.
PBW may ask for additional information to help verify your identity and assess your transaction and business risk. This information may include, but not limited to, business invoices, a driver's license or other government-issued identification, or a business license, or financial statements.
We may request your permission to do an on-premises audit at your place of business and to examine books and records that pertain to your compliance with this Agreement. Your failure to comply with any of these requests within five days may result in suspension or termination of your account or access to PBW Payment Services, or delays in (or holds on) payouts. You authorize us to retrieve additional information about you from third parties and other identification services.
By accepting this Agreement, you authorize PBW to retrieve information about you through third parties, including credit bureaus and other information providers. You acknowledge that such information retrieved may include your name, address history, credit history, and other data about you. We may periodically update this information to determine whether you continue to meet the eligibility requirements for an Account.
You agree that PBW is permitted to contact and share information about you and your account with Payment Processor. This includes sharing information about your transactions for regulatory or compliance purposes, use in connection with the management and maintenance of our Payment and Payment Services, to help our Payment Processor create and update their customer records about you and to assist them in better serving you, and to conduct PBW's and the Payment Processor’s risk management process.
Payment processing services for Merchants on PBW Pro Marketplace are provided by external Payment Processors and are subject to their terms and conditions. By agreeing to this Agreement or continuing to operate as a Merchant on PBW Pro Marketplace, you agree to be bound by the Processors’ Agreements. For a complete details of Payment Processor underwriting processes and agreements, please refer to each Payment Processor’s webpage (some of these pages are listed below):
You agree to notify us immediately of any changes to your trade name, bank account, other changes in personal or business information, or the manner in which you accept payment. Failure to notify us prior to these changes taking effect, and while still using the Payment Services, may lead to service interruptions or other complications. PBW takes no responsibility for any disputes, conflicts, interruptions, or delays arising from such changes.
Payouts . Merchants will receive payouts to the designated Reserve Account and bank account in the amount of the transaction charged less the PBW Service Fee, Payment Service Fee and any other PBW fee, or other withholding as described herein. The payouts will be made to the bank account you provide in your PBW registration. The actual timing of the transfers to your bank account of the settling funds will be subject to the payout schedule as defined in section 16.
Payout Schedule . Payout schedule refers to the time it takes for us to initiate a deposit to your bank account for funds due to you from the Payment Services. For settled transactions due to you, PBW will initiate the transfer of funds (less any applicable Service Fee, Chargebacks, and other funds owed to us for any reason) in accordance with the Payout Schedule.
The funds should normally be credited to your bank account within one to two (1-2) business days after the payment has been initiated. PBW is not responsible for any action taken by the institution holding your bank account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you in your bank account, or for any delays imposed by your bank or our Payment Processor. PBW and our Payment Processor reserves the right to change the Payout Schedule from time-to-time or suspend payouts to your Bank Account as outlined in Section 5.1.
Payment Processors may utilize Reserve Accounts for payouts. Reserve Accounts are used to secure Payment Processors against possible consumer disputes, chargebacks or frauds. They result in holding a percentage of Merchant’s funds for a given period of time, subject to Payment Processor internal regulations. This process is independent from PBW and in accordance with Payment Processor policies.
PBW may also hold funds in a Reserve Account. Funds set aside in such a Reserve Account will be held to cover Chargebacks, refunds, or other payment obligations under this Agreement. PBW, in our discretion, will set the terms for this Reserve Account and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for your transaction is held for a period of time or that additional amounts are held in the Reserve Account. We, in our discretion, may elect to change the terms of the Reserve Account at any time for any reason based on your payment processing history or as requested by our Payment Processor.
PBW reserves the right to impose limits on the amount or frequency of refunds issued by any Merchant at any time. PBW may require verification that a Merchant has sufficient funds to cover any refund issued.
Order History and Reporting
Taxes and Reporting. It is your responsibility to determine what, if any, taxes apply to your Orders or any payments processed through PBW or other methods ("Taxes"). While PBW may provide reporting and other tools in an effort to assist you calculate Taxes, PBW makes no guarantees as to the accuracy or effectiveness of these tools or your use of them. It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that PBW and our Payment Processor may make certain reports to tax authorities regarding transactions processed through PBW Payment Services and our Payment Processor.
Issuing Form 1099-K. Where applicable, PBW will issue a form 1099-K to the IRS as required by law for any Merchant that receives both $20,000.00 or more in gross transaction volume and 200 or more unique transactions in a calendar year. Merchants are entitled to a copy of their 1099-K to be available online at our website, or via email at PBW’s discretion. Forms and notices such as the 1099-K shall be considered to be received by you within twenty-four (24) hours of the time it is posted to our website, emailed, or mailed to you unless we are informed that the notice was not received.
Massachusetts and Vermont recently changed their 1099-K requirements for the 2017 tax year. PBW will provide a 1099-K form to accounts based in Massachusetts or Vermont who have $600 USD or more in total gross volume.
Transaction Records. Except as required by law, you are solely responsible for compiling and retaining permanent records of all transactions and other data associated with your Account, your transaction history, and your use of the Payment Services. PBW may provide dashboards, reports, and breakdowns of your transactions and payouts through PBW Marketplace, and may maintain records for the previous eighteen (18) months, subject to change without notice.
Reconciliations and Discrepancies. You agree to notify us of any discrepancies arising from any reconciliations or audits. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event you are owed money as a result of the discrepancy, we will remit funds through applicable Payment Services within your regular Payout Schedule. Your failure to notify us of an error or discrepancy within sixty (60) days of when it first appears in your PBW account (e.g., in any dashboards or reporting provided to you) will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
Transaction Errors. If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your account as appropriate. PBW may only correct transactions that you process incorrectly if and when you notify us of such an error, unless we are otherwise made aware of it. Your failure to notify us of any error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
Referral Credits and Promotional Codes
Referral Credits . We offer credits for referring new users. To qualify for a referral credit, you must refer a new bona fide user who establishes a PBW Account and reserves and completes a Service within ninety (90) days of signing up for an Account. Please note that referral credits are issued only for referrals of first-time users to PBW. Credits are not available for referring previous users of PBW Merchant Services. You may earn only one referral bonus per new user referred and you cannot earn a referral credit by referring yourself. We reserve the right to revoke or cancel credits at any time.
Promotional Codes . We may, in our sole discretion, create promotional codes that may be redeemed for credit in your Account, or other features or benefits related to the Services, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Unless otherwise expressly stated in additional terms we establish for a particular Promo Code, Promo Codes may only be used once per person, multiple Promo Codes cannot be used in a single transaction or Service visit, and each Promo Code benefit may only be redeemed once per account. Only Promo Codes sent to you through official Personal Beauty & Wellness communications channels are valid. You further agree: (i) to use Promo Codes only for their intended purpose, and in a lawful manner; (ii) you will not alter, duplicate, sell, transfer or redistribute Promo Codes in any manner (including, without limitation, by posting Promo Codes to a website or other public forum), unless expressly permitted by us; (iii) Promo Codes may be disabled by us at any time for any reason without liability to us; (iv) Promo Codes may only be used pursuant to this Agreement and any specific additional terms that we establish for a Promo Code; (v) Promo Codes have no cash value; and (vi) Promo Codes may expire prior to your use.
Reservation of Rights . We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event we determine in our sole discretion that the use or redemption of the Promo Code in question or the provision of any referral credit was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or the terms of this Agreement. Once you have redeemed a Promo Code or used any credit in your Account to purchase Merchant Services, no further promotional value adjustments or credits will be issued for any reason, including but not limited to, dissatisfaction with the Merchant Services.
Unless both you and PBW expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. In the event you properly terminate this Agreement, your right to use the Marketplace is automatically revoked, and your Account will be closed. PBW is not a party to any Order Contract between End Users. Consequently, you understand and acknowledge that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact Order Contract entered into between End Users. If you attempt to terminate this Agreement while having one or more open Orders, you agree: (a) you hereby instruct PBW to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Orders have closed on the Marketplace; (c) PBW will continue to perform those Merchant and/or Site Services necessary to complete any open Order between you and another End User.
Without limiting PBW’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Marketplace or Site Services, deny your registration, or permanently revoke your access to the Marketplace and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our End Users, or PBW or our Affiliates; may be contrary to the interests of the Marketplace or the End User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Marketplace under the same Account or a different Account or reregister under a new Account without PBW’s prior written consent. If you attempt to use the Marketplace under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Marketplace depend on transparency of End User’s Account status to all End Users, including both yourself and other End Users who have entered into Order Contracts with you. You therefore agree as follows: IF PBW DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, PBW HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER END USERS THAT HAVE ENTERED INTO ORDERS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE END USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT PBW WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY END USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
Effect of Termination and Survival
Should you discontinue use of the Marketplace or otherwise suspend or cancel your PBW Marketplace account, we will immediately discontinue your access to the Payment Services. You agree to complete all pending transactions or outstanding appointments (or notify End Users of cancellation) and stop accepting new transactions through PBW Pro, as applicable. Any funds due to you will be paid out to you subject to the terms of your payout schedule and any applicable withholding.
Termination does not relieve you of your obligations as defined in this Agreement and we may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in this Agreement, including but not limited to Chargebacks, Fees, Refunds, reversals, or Investigations.
Your discontinuing to use PBW Payment Services will not necessarily terminate your PBW Pro Merchant Agreement, unless PBW informs you otherwise.
Failure to pay any fees to PBW including Service Fees, or accruing any balance owed to PBW for Payment Services may result in the suspension of your account. PBW may disallow your access to any services provided at our discretion until any balances owed are paid in full.
Data Security and Privacy
You are fully responsible for the security of data on your website or otherwise in your possession. You agree to comply with all applicable country and local laws and rules in connection with your collection, security and dissemination of any personal, financial, credit card, or transaction information (defined as "Data") on your website. PBW expressly rejects all responsibility and liability for your own Data.
If we believe that a security breach or compromise of data has occurred, PBW may require you to have a third-party auditor that is approved by PBW conduct a security audit of your systems and facilities and issue a report to be provided to PBW, our Payment Processor, financial banks, and/or the Payment Networks.
You represent to us that you are in compliance with all applicable privacy laws, you have obtained all necessary rights and consents under applicable law to disclose to us, or allow PBW or Payment Processor to collect, use, retain and disclose any Consumer or cardholder data that you provide to us or authorize us to collect, including email addresses, phone numbers, or information that we may collect directly from your end users via cookies or other means, and that we will not be in breach of any such laws by collecting, receiving, using and disclosing such information in connection with the Payment Services or other services. As between the parties to this Agreement, you are solely responsible for disclosing to your customers that we assist in managing card transactions for you and obtaining data from such customers. If you receive information about others, including Consumers and cardholders, through the use PBW Payment Services, you must keep such information confidential and only use it in connection with PBW Pro platform.
You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless you receive the express consent of the user to do so. You may not disclose card numbers to any third party, other than in connection with processing a card transaction requested by the Buyer.
Merchant Representation and Warranties. You represent and warrant to us that:
you are at least eighteen (18) years of age;
you are eligible to register and use PBW Pro, including payouts, and have the right, power, and ability to enter into and perform under this Agreement;
the name identified by you when you registered is your name or business name under which you sell goods and services;
any sales transaction submitted by you will represent a bona fide sale by you;
any sales transactions submitted by you will accurately describe the Products and/or services sold and delivered to a purchaser;
you will fulfill all of your obligations to each End User for which you submit a transaction and will resolve any Consumer dispute or complaint directly with the purchaser;
you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations;
except in the ordinary course of business, no sales transaction submitted by you through the Payment Service will represent a sale to any principal, partner, proprietor, or owner of your entity;
you will not use the Payment Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of any aspect of the PBW Pro platform.
Prohibited Businesses . The following activities and businesses are expressly prohibited from the PBW Marketplace: age restricted products or services, age verification, airlines, alcohol, any product or service that infringes upon the copyright, trademark, or trade secrets of any third party, any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Networks, bail bonds, bankruptcy lawyers, bidding fee auctions, chain letters, check cashing, wire transfers or money orders, collection agencies, counterfeit goods, credit card and identity theft protection, cruise lines, currency exchanges or dealers, door-to-door sales, drug paraphernalia, embassies, foreign consulates or other foreign governments, engaging in any form of licensed or unlicensed aggregation or factoring, engaging in deceptive marketing practices, essay mills, evading a Payment Network’s chargeback monitoring programs, extended warranties, firms selling business opportunities, investment opportunities, mortgage consulting, credit repair or protection or real estate purchases with no money down, flea markets, gambling, “get rich quick” schemes, illegal products or services, mail-order brides, money transmitters or money service businesses, multi-level marketing or pyramid schemes, negative response marketing, pharmacies or pharmacy referral services, pre-paid phone cards, pseudo pharmaceuticals, quasi-cash or stored value, securities brokers, sexually-oriented products or services categorized as: child pornography, fetish gear and services including S&M paraphernalia, hard-core sexually oriented products and services, international match-making services, pornographic materials displaying sexually explicit pictures, images, and videos, sexually explicit telephone or online conversations and chat, sexually-oriented dating services, including companion/escort services and prostitution, sexually-oriented massage parlors, sex shows, sex clubs, topless bars, strip shows, and other adult entertainment, widgets that allow you to access pornography or pornographic ads, Selling social media activity, such as Twitter followers, Facebook likes or Youtube views, sharing cardholder’s data with another merchant for payment of up-sell or cross-sell product or service, shipping or forwarding brokers, sports forecasting or odds making, substances designed to mimic illegal drug, telecommunications equipment and telephone sales, telemarketing, timeshares, tobacco, e-cigarettes, vaporizers and accessories including e-juice, virtual currency that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world or related services, weapons and munitions.
The Marketplace Platform is provided to Merchants for nil consideration.
Membership Fees . Merchants may pay PBW a membership fee if they subscribe for a paid membership, when available.
Merchants may choose to upgrade Services to PBW Platinum (“PBW Platinum”) for a fee, when available. PBW Platinum is a suite of online booking and customer records management tools that allow for a range of activities including creating and modifying appointments for their clients regardless of whether or not they were booked through the Marketplace. PBW Platinum allows merchants to place, sell Beauty Products, accept, conclude, keep records of and manage products and services provided.
Merchants with active PBW Pro Account can upgrade Services to promote their Account on the Marketplace. Buyers who create accounts on the Marketplace can make and edit appointments to Merchants directly through the Marketplace.
PBW Service Fees. Merchants pay PBW a Service Fee as established per the Merchant Participation Agreement. The Service Fee is applicable to bookings processed through PBW Marketplace and paid by End Users (Booked and Paid Orders). This fee covers the Services including among others: presentation of Merchant Offering to End Users, appointment booking, communication to End Users, reporting and Payment Services.
Refunds and Chargebacks. PBW fees are not returned when merchant charge is refunded or charged-back. PBW reserves its right to impose separate fees for processing refunds or Chargebacks.
Fee Verification. The pricing for the Services are set forth within the Merchant’s online account settings. Merchant may verify the fee structure for its account at any time by contacting customer service at firstname.lastname@example.org.
No Charge for Buyers. The use of the Services and PBW Pro Marketplace is free of charge for Buyers.
Consent to PBW Fees. By providing a credit card or other payment method accepted by PBW ("Payment Method"), Merchant is expressly agreeing that PBW is authorized to charge Merchant with all fees attributable for the use of PBW Marketplace without additional consent. If Merchant wants to use a different Payment Method than the one Merchant provided PBW, or if there is a change in Merchant’s credit card validity or expiration date, Merchant may edit its Payment Method information in its online account settings or by contacting email@example.com.
Consent to Continue Billing. If Merchant’s Payment Method expires and Merchant does not edit its Payment Method information, Merchant authorizes PBW to continue billing, and Merchant shall remain responsible for any uncollected amounts.
Collection Mechanisms. PBW Service Fees will be collected in the form of a deduction from Payouts made to Merchant bank account.
PBW uses billing cycles that are in line with calendar months. At the end of each billing cycle, PBW will issue an invoice to document monthly transactions, charges and payments with the Merchant.
Vouchers . Merchants may sell vouchers to Consumers through the Marketplace. For any vouchers purchased by Consumers, PBW will forward the payment to Merchant less applicable PBW fees as outlined under separate Section. For Orders paid by issued vouchers, PBW will not charge its Service Fee.
Photographs . With the Merchant's permission, PBW may pay for professional photographs to be taken of a Merchant's place of business, owners, staff members, customers, logos, or services being performed by the Merchant. PBW wholly owns these photographs and has the right to use these photographs to promote and advertise Merchant Services on the Website, mobile application and through other online and offline channels without further consent from the Merchant.
License . Merchant shall grant PBW a non-exclusive, worldwide license to use, copy, distribute, transmit, and display any information PBW collects through PBW or from Merchant's publicly available website and to Merchant's name, logo and any trademarks ("Merchant Marks") and any photographs, graphics, artwork, text and other content provided or specified by Merchant ("Content") in connection with the marketing, promotion, sale or distribution of Vouchers, in any and all media or formats in which such Merchant Services are marketed, promoted, transmitted, sold, or distributed, including on the Website. Merchants may request that PBW remove or stop using any information obtained from Merchant website by emailing firstname.lastname@example.org .
Access to Merchant Data .
Information License. By submitting information, data, materials and other content to PBW, you are licensing that content to PBW solely for the purpose of providing the Services. You hereby authorize and permit PBW to use and store information submitted by you to accomplish the foregoing and to configure the Services for you. PBW may use and store the content, but only to provide the Services to you. By submitting this content to PBW, you represent that you are entitled to submit it to PBW for use for this purpose, without any obligation by PBW to pay any fees or other limitations. By using the Services, you also expressly authorize PBW to access your Account information maintained at PBW. For purposes of this Agreement and solely to provide the appointment booking feature to you as part of the Services, you grant PBW a limited power of attorney, and appoint PBW as your attorney-in-fact and agent, to access third party marketplaces, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN PBW IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY MARKETPLACES, PBW IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You understand and agree that the Services are not sponsored or endorsed by any third parties accessible through the Services.
Security. Merchant agrees to allow PBW to access its calendar held at PBW. Merchant will not hold PBW liable for any breaches of security.
PBW Calendar Data. By using the Services, Merchant agrees to the Marketplace making revisions, updates, and sync to Merchant’s calendar data stored in PBW, including but not limited to recording Orders and Beauty Products sold.
Aggregated Merchant Data . PBW may collect data from a Merchant's account and may use, sell or report such data for any purpose or use including for promotional purposes, revenue generation and product development, so long as such data has been aggregated with the data of no fewer than four (4) other Merchants.
Compliance with Laws
At all times, Merchant shall comply with all applicable local, state or federal laws, statutes, rules, regulations, or orders, including any Laws governing vouchers, Beauty Products, coupons, and/or gift cards or certificates. These laws include but are not limited to:
Unfair Competition Laws. All applicable laws that prohibit false, deceptive or unfair advertising or disparagement;
Intellectual Property Laws. All applicable laws regarding the copyright, trademark, or other intellectual property rights or rights of privacy or publicity of any third party; and
Voucher, Beauty Products, Gift Certificate and Abandoned Property Laws. All applicable laws, governing the imposition of expiration dates, service charges, dormancy fees or other terms and conditions of the Order. Merchant shall allow the Consumer to use the Order for Services for the amount paid by Consumer for the Order (i.e. the cash or redemption value of the Order) for the applicable term specified under applicable laws and shall allow redemption refund of the amount paid for the Order as required. To the extent required by applicable local escheat or abandoned or unclaimed property laws, Merchant shall be solely responsible for and agrees to report and pay over to the applicable governmental agency any unredeemed cash value of any Order issued under this Agreement. Merchant is responsible for keeping track of the cash amount paid by the Consumer for the Order and any unredeemed balance of that cash amount to ensure compliance with this Agreement. Furthermore, Merchant agrees that so long as an appointment is made for Merchant Services before the expiration date of the Order, the Order will be fully honored without restriction even though Merchant Services may be completed after the expiration date.
Where Merchant offers Merchant Services to individual End Users in the EEA or the United Kingdom:
the parties will comply with the Data Protection Addendum; and
to the extent of any conflict or inconsistency between the main body of this Agreement and the Data Protection Addendum, the terms of the Data Protection Addendum shall prevail.
Further Representations and Warranties
THE PBW MARKETPLACE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PBW OR THROUGH THE MARKETPLACE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, PBW, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS; THAT THE PBW MARKETPLACE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT PBW MARKETPLACE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF PBW MARKETPLACE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF PBW MARKETPLACE. SOME COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. PBW DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PBW MARKETPLACE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND PBW WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
The Merchant represents and warrants to PBW as follows:
Authority. The Merchant has full corporate power and authority to execute and deliver this Agreement and to perform its obligations. The execution, delivery and performance of this Agreement have been duly authorized, or will have been duly authorized, by all necessary corporate action on the part of the Merchant, and this Agreement has been duly executed and delivered by the Merchant.
Taxes. Merchant is registered for sales and income tax collection purposes in all countries and states in which Merchant Services will be provided pursuant to the terms of this Agreement.
Termination. In the event of Merchant's breach of any of the representations and warranties, PBW may, without prejudice to any other remedies or rights which may be available to PBW, immediately terminate or suspend any Merchant Account.
Intellectual Property . PBW owns all rights, titles, and interests in the PBW Marketplace, all content, material, and trademarks presented on PBW Marketplace or transferred thereby (excluding any licensed Merchant Marks), and any software, technology or tools used by PBW to promote, market, sell, generate, or distribute the Vouchers and all intellectual property rights related thereto (collectively, the "PBW IP"). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights and Merchant may not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, adapt, edit, modify or timeshare the PBW IP or any portion thereof, or use such PBW IP as a component of or a base for Products or services prepared for commercial sale, sublicense, lease, access or distribution. Merchant may not prepare any derivative work based on the PBW IP. Merchant may not translate, reverse engineer, decompile or disassemble the PBW IP.
Responsibility for Staff Member Actions . Staff Members of a Merchant having access to Merchant Account at PBW, will also have access to Merchant Account at PBW Marketplace. An agency relationship will exist between the staff members and the Merchant and any actions taken by either staff member or Merchant will bind the Merchant.
Indemnification . Merchant agrees to defend, indemnify and hold PBW, its affiliated and related entities, and any of their officers, directors, agents and staff members, harmless from and against any claims, actions, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to attorney's fees, court fees and collection costs) arising out of or relating to any of the following:
Any breach or alleged breach by Merchant of this Agreement or the representations and warranties stated in this Agreement;
Any claim for Taxes arising from use of the Services, including but not limited to the sale and subsequent redemption of a Voucher and or product;
Any claim by any local, state or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or Products or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest ( "Abandoned Property Claims");
Any claim arising out of a violation of law and/or regulation governing the use, sale, and/or distribution of alcohol;
Any claim arising out of or relating to the sale, performance, or delivery of Merchant Services, including, but not limited to, any claims for changes to or determination of the value of a Voucher or Merchant Services, false advertising, product defects, personal injury, death, or property damages;
Merchant's failure to comply with any applicable Laws including, but not limited to the regulations of: telephone consumer protection, consumer personal data protection; or
Without limiting the foregoing, Merchant shall pay any monies owed to any party, as well as all attorney's fees, court fees and collection costs related to any action against, or determinations against, PBW related to any action to pursue PBW for Taxes or Abandoned Property Claims.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PBW, ITS AFFILIATES, AGENTS, DIRECTORS, STAFF MEMBERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL PBW BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PBW ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF PBW MARKETPLACE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM PBW MARKETPLACE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH PBW MARKETPLACE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH PBW MARKETPLACE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL PBW, ITS AFFILIATES, AGENTS, DIRECTORS, STAFF MEMBERS, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO PBW HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF PBW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Services are controlled and operated from facilities in the United States. Company makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable local laws and regulations, including, but not limited to, export and import regulations.
Arbitration Agreement and Jury Trial Waiver . Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and us or our employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
Arbitration Process . You and PBW must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR PBW MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
Small Claims Court . Notwithstanding the foregoing, either you or PBW may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in New York, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York, New York in order to maintain the status quo pending arbitration, and hereby agrees to submit to the exclusive personal jurisdiction of the courts located within New York, New York for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate. With the exception of subparts (a) and (b) in section 37.2 above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in New York, New York.For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Governing Law and Jurisdiction . This Agreement is made under and will be governed by and construed in accordance with the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
Assignment. Merchant may not assign or delegate its rights or obligations under this Agreement or any rights and licenses granted hereunder, whether by operation of law or otherwise, without PBW's prior written consent, but PBW may assign the foregoing without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Headings and Sub-headings. Headings and sub-headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement.
Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invaliding the remaining provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.
Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the Parties. Neither Party has the authority, without the other Party's prior written approval, to bind or commit the other Party in any way.
Amendments and Supplements. This Agreement may be amended, modified and supplemented by PBW at any time, in its sole discretion. These changes take effect immediately upon posting on PBW Marketplace and Merchant's continued use or access of the Services constitutes the Merchant's acceptance of the modified agreement. Please check this Agreement and these Terms and Conditions, available on PBW Marketplace, periodically for changes. Your continued use of the Services after the posting of any changes to the Terms and Conditions will signify your acceptance of those changes.
BY REGISTERING FOR A MERCHANT ACCOUNT OR BY USING OR ACCESSING THE SERVICES, MERCHANT UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT MERCHANT WILL ABIDE BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT REGISTER FOR A MERCHANT ACCOUNT AND IMMEDIATELY STOP (A) ACCESSING PBW PRO MARKETPLACE AND (B) SUBMITTING MERCHANT OFFERINGS.
Data Protection Agreement
In this Addendum, the following words shall have the following meanings:
“Agreed Purpose” to allow PBW to provide access to PBW and the PBW Pro Marketplace to the Merchant in such a manner as to permit the Merchant to take full advantage of all the features of the Platform.
“Data Protection Authority” means the local governmental or other official regulator(s) responsible for enforcement of Data Protection Legislation from time-to-time in the relevant EEA country or the United Kingdom.
“Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy including the General Data Protection Regulation 2016 (EU) 2016/679 and the Electronic Communications Data Protection Directive (2002/58/EC), together with all codes of practice and other guidance on the foregoing issued by any relevant Data Protection Authority, all as amended, updated or re-enacted from time-to-time.
“Shared Personal Data” the personal data which is shared between the parties, including names, contact information (phone numbers, addresses, email addresses), age date of birth, social media data, personal interests, and other personal data shared by the Merchant on PBW
1.1. The terms ‘personal data’, ‘data subject’, ‘processor’, ‘controller’, ‘processing’, ‘personal data breach’, ‘pseudonymisation’, ‘special categories of data’ and ‘supervisory authority’ have the meanings set out in the Data Protection Legislation.
1.2. Where a term is capitalised in this schedule but not defined, it shall have the same meaning as is given to it in the main body of this Addendum.
2. AGREED PURPOSE
2.1. The parties acknowledge that for the purposes of the Data Protection Legislation, they shall act as data controllers with respect to the Shared Personal Data.
2.2. The parties agree to only process Shared Personal Data for the Agreed Purpose, and shall not process it in a way which is incompatible with the Agreed Purpose.
3. SHARED PERSONAL DATA
3.1. Each party shall (and shall ensure that any subcontractors shall):
3.1.1. comply with their obligations under the Data Protection Legislation; and
3.1.2. obtain all permissions and consents necessary to disclose the Shared Personal Data to the other party.
3.2. The Shared Personal Data must not be irrelevant or excessive with regard to the Agreed Purpose. Neither party shall attempt to access, copy, amend, store or delete any personal data owned by the other party where any such action is not absolutely necessary in order to fulfil the Agreed Purposes.
3.3. Each party shall ensure that it only processes Shared Personal Data on the basis of one or more of the legal grounds for processing contained in the Data Protection Legislation, and that the chosen legal ground shall be and remain valid in the context of the processing operation(s) to which it relates.
3.4. Each party shall ensure that (to the extent of its reasonable knowledge and belief) the personal data it discloses to the other party is accurate.
4. RIGHTS OF DATA SUBJECTS
4.1. Each party shall, in respect of Shared Personal Data, ensure that their privacy notices are clear and provide sufficient information to prospective customers and any other effected data subjects for them to understand what of their personal data is being shared, the circumstances in which it will be shared, the purposes for the data sharing and either the identity of the other party, or a description of the type of organization that will receive the personal data.
4.2. The parties acknowledge that the Data Protection Legislation grants data subjects certain rights over their personal data, and that the responsibility for complying with such a request falls to the party who receives it in respect of the personal data they hold about the relevant data subject.
4.3. The parties shall maintain a record of any requests made by data subjects to exercise their rights. The records shall also include an explanation of decisions made and any information that was exchanged. Records must include copies of the request, details of the data accessed and shared and where relevant, notes of any meetings, correspondence or phone calls relating to the request.
4.4. The parties agree to provide reasonable assistance as is necessary to each other to enable them to comply with any requests made by a data subject.
5. DATA RETENTION
Each party shall ensure that it only retains Shared Personal Data for as long as necessary for the purposes it was originally collected for, or as otherwise required under the Data Protection Legislation or other applicable laws.
6.1. For the purposes of this paragraph, transfers of personal data shall mean any disclosure of Shared Personal Data to an unconnected third party.
6.2. Where either party transfers Shared Personal Data in accordance with this Addendum:
6.2.1. it shall ensure that the transfer of such Shared Personal Data is carried out in accordance with a written contract;
6.2.2. where the transfer is outside of the EEA and is not to a territory approved by the European Commission as providing adequate protection, nor to an entity who is a member of the “Privacy Shield” certification scheme, it shall ensure that the transfer is otherwise legitimized in accordance with the Data Protection Legislation; and
6.2.3. it shall remain liable for the actions of any third party who receives it as though they were its own.
7. SECURITY AND TRAINING
7.1. Taking into account the latest standards of security measures, the costs of implementation and the nature, scope, context and purposes of the data sharing, as well as the risk to the rights and freedoms of natural persons, each party shall implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk.
7.2. It is the responsibility of each party to ensure that its staff members are appropriately trained to handle and process the Shared Personal Data in accordance with the technical and organizational security measures adopted by that party, together with any other applicable national data protection laws and guidance. The level, content and regularity of such training shall be proportionate to the staff members' role, responsibility and frequency with respect to their handling and processing of the Shared Personal Data.
7.3. If either party becomes aware of a personal data breach relating to any of the Shared Personal Data, it shall:
7.3.1. notify the other party immediately upon becoming aware of the personal data breach, including sufficient detail to allow that party to conduct its own investigation and assessment;
7.3.2. provide the other party with such information and assistance as it requires in relation to the personal data breach; and
7.3.3. document the personal data breach and any related action taken.
Each party shall perform its obligations under this schedule at its own cost.