Exhibit a
Wholesail Terms of Service Agreement
By signing the attached Order Form, the parties hereby agree to the following:
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY.
PLEASE BE AWARE THAT SECTION 2.3 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES BETWEEN US WILL BE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
Wholesail, Inc. (“Wholesail”) has developed an online accounts receivable platform to facilitate payments from buyers of wholesale goods and services (“Buyers”) to the individual or legal entity entering into the Order Form above that is selling such goods and services (“Seller”). Seller wishes to utilize the Wholesail Services (as defined below) to invoice its customers and receive payments, and Wholesail desires to make the Wholesail Services available to Seller, subject to the following terms and conditions. Certain products available within the Wholesail Services may be subject to additional terms specific to that product as set forth in the Product-Specific Terms. By accessing or using a product covered by the Product-Specific Terms, you also agree to the Product-Specific Terms. In the event of a conflict between the Product-Specific Terms and the Terms of Service, the Terms of Service will control except to the extent the conflict relates specifically and directly to the use of the applicable product, in which case the Product-Specific terms will control.
1. DEFINITIONS. The following capitalized terms will have the meanings set forth below.
1.1 “Applications” means the applications made available by Wholesail for the purpose of enabling access to the Wholesail Services, including any updates thereto that may be made generally available by Wholesail from time to time.
1.2 “Authorized Users” means Seller’s employees and contractors that are authorized by Seller to use the Wholesail Services.
1.3 “Invoice” means an invoice issued by Seller to a Buyer through the Wholesail Services.
1.4 “Payout Account” means Seller’s eligible bank account at a connected financial institution, as designated through the Wholesail Services.
1.5 “Seller Content” means content and/or data that is uploaded, transmitted or otherwise provided by Seller and/or its Authorized Users to the Wholesail Services, including Invoices and payment information. Seller Content does not include data or content that is independently derived by Wholesail or obtained by Wholesail from a third party.
1.6 “Transaction” means a payment from a Buyer pursuant to an Invoice processed through the Wholesail Services on behalf of Seller.
1.7 “Wholesail Services” means Wholesail’s online accounts receivable and accounts payable platform designed to facilitate payments to Sellers from Buyers on behalf of such Sellers.
2. SELLER RESPONSIBILITIES.
2.1 Invoices. Seller represents and warrants that each Invoice is a true, complete, and accurate invoice for payment for goods and services provided by Seller to Buyer. Seller will provide instructions to Wholesail to ensure Invoices are only transmitted to Buyer through the Wholesail Services after they are finalized and accurate. In the event a Buyer is charged incorrectly for an Invoice due to Invoice data inaccuracies or Buyer disputes an invoice, Seller must credit Buyer or refund payment in accordance with Wholesail’s Dispute Policy as set forth on Appendix C and updated by Wholesail from time to time. In the event of a refund, Wholesail will charge Seller’s Payment Account, and Seller hereby grants Wholesail a Recovery Authorization to charge Seller’s Payment Account for such amounts as set forth in Section 4.4.2.
2.2 Transactions. Seller contracts directly with Buyers for Transactions. Wholesail will not be a party to any such contracts between Seller and any Buyer. Seller is solely responsible for (i) the content of Invoices and for setting the prices charged to Buyers for applicable goods and services, including any discounting and other terms applied via the Wholesail Services; and (ii) for compliance with any law regarding setting the prices it charges Buyers, including any discounting, credit terms and other terms applied via the Wholesail Services. As detailed further in Section 4, below, Wholesail acts as Seller’s limited agent to accept payments from Buyers for Invoices on behalf of Sellers. Notwithstanding the foregoing, Wholesail will not be liable for a Buyer’s failure to pay Seller. Where either Wholesail or the Seller incur any losses based on unauthorized activity initiated by Seller or Wholesail on a Seller’s behalf, Seller is financially liable for such losses. Wholesail may deduct such losses by initiating a debit to Seller’s Payment Account, or require Seller to pay such losses to Wholesail.
2.3 Disputes and Chargebacks. As between Seller and Wholesail, Seller is responsible to Wholesail for all disputes, chargebacks, refunds, reversals, returns, or fines regardless of the reason or timing. If a Buyer disputes the payment or files a claim for a chargeback, the debit or credit card issuer or the originating bank, not Wholesail, ultimately determines resolution of the dispute. In the event that a Buyer submits a chargeback request to its bank or financial institution in connection with a Transaction, Wholesail will inform Seller of the chargeback request. Seller agrees to provide evidence that the items involved in the chargeback request were delivered (e.g., tracking information of the shipping carrier), and that such item(s) were as described in the relevant Invoice, as well as any additional information Wholesail may request, within five (5) days of being informed by Wholesail of the chargeback. In the event that a Buyer payment is invalidated for any reason, including due to a reversed or a dispute such as chargeback otherwise resolved in favor of Buyer, Seller is liable to Wholesail for the full amount of the Buyer’s disputed payment plus any fees and costs. Such fees and costs payable by Seller to Wholesail are set by Wholesail in its sole discretion, and will be itemized in an invoice issued to Seller (a “Fees Invoice”). Current fees in connection with disputes are set forth in Appendix A to this Agreement. Any such Fees Invoice is due and payable fourteen (14) days from issuance. Seller authorizes Wholesail to receive payment for any amounts owed to Wholesail in connection with a Buyer-initiated dispute (including payment on a Fees Invoice) by (i) initiating a debit to the Seller’s Payout Account in accordance with the authorizations set forth herein; or (ii) otherwise offsetting the amount payable against sales proceeds pending settlement to Seller. If there are insufficient funds in Seller’s Payout Account to cover Seller’s liability, Seller agrees to reimburse Wholesail through other means. If Wholesail is unable to recover the funds from Seller’s Payment Account, Wholesail may take other legal actions to collect the amount due, to the extent allowed by applicable law.
2.4 Prohibited Businesses. Wholesail reserves the right to terminate this Agreement or suspend Seller’s access to the Wholesail Services if Seller engages in the following prohibited businesses or business activities: (1) any illegal activity or goods, (2) paraphernalia that may be used for illegal activity (3) buyers or membership clubs, including dues associated with such clubs, (4) credit counseling or credit repair agencies, (5) credit protection or identity theft protection services, (6) direct marketing or subscription offers or services, (7) infomercial sales, (8) internet/mail order/telephone order pharmacies or pharmacy referral services, (9) unauthorized multi-level marketing businesses, (10) inbound or outbound telemarketers, (11) prepaid phone cards or phone services, (12) rebate based businesses, (13) up-sell merchants, (14) bill payment services, (15) betting, including lottery tickets, sports related gambling, casino gaming chips, off-track betting, and wagers at races, (16) manual or automated cash disbursements, (17) prepaid cards, checks, insurance or other financial merchandise or services, (18) sales of money-orders or foreign currency, (19) wire transfer money orders, (20) high-risk products and services, including telemarketing sales, (21) automated fuel dispensers, (22) adult entertainment oriented products or services (in any medium, including internet, telephone, or printed material), (23) sales of (i) firearms, firearm parts or hardware, and ammunition; or (ii) weapons and other devices designed to cause physical injury (24) internet/mail order/telephone order of age restricted products (e.g., tobacco), (25) occult materials, (26) hate or harmful products, (27) escort services, or (28) bankruptcy attorneys or collection agencies engaged in the collection of debt.
2.5 Seller Conduct. While using or accessing the Wholesail Services, Seller further agrees that it will not, under any circumstances:
2.5.1 Breach or circumvent any laws, third party rights or Wholesail’s systems, policies, or determinations of Seller’s account status;
2.5.2 Interfere with or damage the Wholesail Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
2.5.3 Post false, inaccurate, misleading, defamatory or libelous content;
2.5.4 Transfer Seller’s account and username to another party without Wholesail’s consent;
2.5.5 Bypass Wholesail’s robot exclusion headers, interfere with the working of the Wholesail Services, or impose an unreasonable or disproportionately large load on Wholesail’s infrastructure;
2.5.6 Upload, post, e-mail, transmit or otherwise make available through the Wholesail Services any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
2.5.7 Use the Wholesail Services to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
2.5.8 Subcontract or otherwise delegate any of Seller’s obligations under this Agreement;
2.5.9 Disclose or distribute information regarding a Buyer obtained through the Wholesail Services to a third party without Buyer’s consent;
2.5.10 Make available any Seller Content, or use the Wholesail Services in any way or engage in any activity, that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities; or (vi) involves sexual misconduct; or
2.5.11 Use any information made available via the Wholesail Services to harass, intimidate, stalk any person, or make unwanted contact with a Buyer.
2.6 Provision of Data. Seller represents and warrants that it has obtained, and will maintain during the Term of this Agreement, all rights, licenses, consents and permissions necessary to make available to Wholesail any third-party data or content provided through the Wholesail Services, including any data provided pursuant to Seller’s use of Wholesail Lighthouse. Seller further represents that such sharing does not infringe, misappropriate or otherwise violate any intellectual property rights or proprietary rights of any third party.
3. SERVICES.
3.1 Service. Subject to Seller’s ongoing compliance with this Agreement, Wholesail grants Seller, during the Term of this Agreement, a (i) non-exclusive, non-transferable right to permit its Authorized Users to access and use the Wholesail Services solely for Seller’s internal business purpose, and (ii) non-exclusive, non-transferable, non-sublicensable license to download and install the Applications on mobile devices owned or controlled by Seller and/or its Authorized Users from a legitimate third-party marketplace. Seller will be responsible for its Authorized Users’ use of the Wholesail Services (including by ensuring that its Authorized Users comply with the terms of this Agreement) and for enforcing any of Seller’s internal policies regarding its Authorized Users’ use of the Wholesail Services and Applications.
3.2 Account Registration. Seller is required to register with Wholesail in order to access and use certain features of the Wholesail Services. If Seller chooses to register for the Wholesail Services, Seller agrees to provide and maintain true, accurate, current, and complete information about Seller as prompted by Wholesail’s registration form. Registration data and certain other information about Seller are governed by Wholesail’s published privacy policy for the Wholesail Services as may be updated or amended by Wholesail from time to time in its sole discretion (“Privacy Policy”).
3.3 Restrictions. To the maximum extent permitted by applicable law, Seller and its Authorized Users shall not, directly or indirectly, and shall not authorize any person to, (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of; (ii) translate, adapt, or modify; (iii) write or develop any program based upon; (iv) sell, sublicense, transfer any rights in, use for the benefit of, or allow access to, unauthorized persons to; (v) transmit unlawful, infringing or harmful data, content or code to or from; (vi) copy or replicate, or (vii) otherwise use except as expressly permitted hereunder, in each case of (i) – (vii), the Wholesail Services, Applications and all technology constituting or used to provide the foregoing, (collectively, the “Wholesail Technology”). Without limiting the foregoing, Seller and its Authorized Users shall not (1) interfere with or damage the Wholesail Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (2) use the Wholesail Technology to collect or harvest any information concerning any other person or entity; or (3) use any information made available via the Wholesail Services to harass, intimidate, or stalk any person.
3.4 Data Use Restrictions. Seller may use data and reports received through use of the Wholesail Services solely for Seller’s internal business purposes. Seller acknowledges and agrees that it will not reproduce, distribute, sublicense, or otherwise disclose any data or reports received in connection with the Wholesail Services to any third parties, nor use such data for benchmarking, derivative works or competitive analyses.
3.5 Protection Against Unauthorized Use. Seller is responsible for maintaining the secrecy of any passwords that provide access to the Wholesail Services to Seller and its Authorized Users. Seller will use reasonable efforts to prevent any unauthorized access or use of the Wholesail Services and immediately notify Wholesail in writing of any unauthorized access or use. If there is unauthorized access or use by anyone who obtained access to the Wholesail Services directly or indirectly through Seller or its Authorized Users, Seller will take all steps reasonably necessary to terminate the unauthorized access or use. Seller will cooperate and assist with any actions taken by Wholesail to prevent or terminate unauthorized use of the Wholesail Services and remediate any issues resulting from, or related to, such unauthorized access or use. Seller is solely responsible for maintaining its equipment and the timely transmission of, and the accuracy, quality, integrity, and reliability of, the Seller Content.
3.6 Necessary Equipment and Software. Seller must provide all equipment and software necessary to connect to the Wholesail Services, including but not limited to, a mobile device that is suitable to connect with and use the Wholesail Services, in cases where the Wholesail Services offer a mobile component. Seller is solely responsible for any fees, including Internet connection or mobile fees, that Seller incur when accessing the Wholesail Services. By providing Seller’s cellphone number and using the Wholesail Services, Seller hereby affirmatively consents to Wholesail’s use of Seller’s or its Authorized Users’ cellphone numbers for calls and texts in order to perform and improve upon the Wholesail Services. Wholesail will not assess and charge for any calls or texts, but standard message charges or other charged from Seller’s wireless carrier may apply.
3.7 Compliance with Laws. Seller and its Authorized Users will use the Wholesail Services in compliance with all applicable laws and regulations. Seller will obtain all necessary consents, permissions, approvals, or licenses to use and permit Wholesail to use the Seller Content in accordance with this Agreement, the Privacy Policy, and all applicable laws. Without limitation of the foregoing, Seller may allow Buyers to receive communications from Seller via SMS (text) messaging to the Buyer's mobile device ("SMS Messages") in connection with the use of the Wholesail Services. In such case, Seller (i) (A) shall be solely responsible for obtaining all applicable consents from Buyers in connection with the transmission of the SMS Messages, and (B) immediately inform Wholesail of any Buyer who opts out of receiving SMS Messages, and (ii) shall release and hold Wholesail harmless from any claim regarding the SMS Messages. Seller agrees to hold harmless Wholesail from any alleged violation of the foregoing.
3.8 Independent Contractors. The relationship between the parties shall be that of independent contractors. Except as expressly set forth in this Agreement with respect to the appointment of Wholesail as limited payments agent of Seller, neither Seller nor any of its Authorized Users, employees, consultants, contractors or agents (collectively “Seller Personnel”) will be considered to be employees or agents of Wholesail for any purpose, and Wholesail will not be considered an agent of Seller or any Seller Personnel for any purpose. Neither party, nor its employees, will have any authority to bind or make commitments on behalf of the other party for any purpose, nor will it or they hold itself or themselves out as having such authority. Seller will be solely responsible for supervising, providing daily direction and control, and paying the salaries (including withholding of income taxes and social security contributions), accident and other insurance as required by law, disability benefits and the like, of all Seller Personnel.
3.9 Content Provided by Other Users. The Wholesail Services may contain content provided by other users. Wholesail is not responsible for and does not control such content. Wholesail does not approve or endorse, or make any representations or warranties with respect to such content. Seller uses all such content at Seller’s own risk.
4. FEES; PAYMENT.
4.1 Disbursement to Seller. After a Buyer pays an Invoice due from Seller in connection with a Transaction, Wholesail will settle funds to the Seller’s Payout Account in a timely manner, but no later than seven (7) business days, subject to this Agreement. If the Buyer’s payment to Wholesail fails or is not received within seven (7) days of Wholesail initiating payment to the Seller, Wholesail may recoup such amounts by: (i) offsetting such amounts against funds pending settlement to Seller; or (ii) debiting Sellers’ Payout Account pursuant to the Recovery Authorization as set forth in Section 4.5. Wholesail further reserves the right to adjust or withhold all or a portion of funds pending settlement in its sole discretion: (i) if Seller or an Authorized User has attempted to defraud or abuse a Buyer, Wholesail, or Wholesail’s payment systems; (ii) to resolve a complaint made by a Buyer or otherwise in connection with a dispute; or (iii) if Wholesail otherwise determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness Seller may have incurred with Company or any Buyer. Seller is solely responsible for ensuring that all Seller Payment Account information (and Buyer Payment Account information to the extent Seller provides such information to Wholesail) is accurate and for keeping such information up to date. If payment is made to Seller in error, or if Seller receives funds that Seller is not otherwise entitled to receive at the time of disbursement, Wholesail has the right to recoup such amounts from the Seller, including without limitation by initiating a debit or charge to the Seller’s Payment Account Services. Wholesail may also offset against funds pending settlement to Seller any sums due, or reasonably likely to become due, to Wholesail pursuant to this Agreement.
4.2 Wholesail Transaction Fees. Wholesail will automatically charge Seller a non-refundable and non-recoupable fee for processing Transactions, calculated as a percentage of the Seller’s total daily Transaction volume on the Wholesail Services as set forth on Appendix A, which may be updated by Wholesail from time to time (the “Transaction Fee”). The Transaction Fee will be deducted from amounts processed by Wholesail as set forth on Appendix A or charged separately to Seller’s Payment Account as set forth on Appendix A.
4.3 Additional Fees. In connection with the Services, Wholesail may charge additional fees as set forth on Appendix A.
4.4 Appointment as Payments Agent. To the extent applicable, Seller hereby appoints Wholesail as its limited payments agent for the sole purpose of receiving, holding, and settling payments to Seller for Transactions. Wholesail will settle payments that are actually or constructively received by Wholesail to Seller, subject Transfer Fees and to Wholesail’s rights to withhold or offset funds as set forth in Sections 4.1 and 2.3, and in Wholesail’s Dispute Policy as set forth on Appendix C (as updated by Wholesail from time to time). Seller agrees that a payment actually or constructively received by Wholesail, on behalf of Seller, satisfies the Buyer’s obligation to make payment to Seller for Buyer’s Invoice, regardless of whether Wholesail actually settles such payment to Seller. If Wholesail does not settle any such payments as described in this Agreement to Seller, Seller will have recourse only against Wholesail and not the Buyer, as payment for the applicable Invoice is deemed made by Buyer to Seller upon constructive or actual receipt of funds by Wholesail. In accepting this appointment as the limited payments agent of Seller, Seller agrees that Wholesail assumes no liability for any acts or omissions of Seller, and Seller understands that the obligation of Wholesail (or its third party payment processor) to settle funds to Seller is subject to and conditional upon the Buyer’s actual payment and the terms of this Agreement.
4.5 Recovery Authorization. By using the Wholesail Services, Seller authorizes Wholesail to recover funds from Seller in accordance with this Agreement (“Recovery Authorizations”). Recovery Authorizations include: (i) Seller’s authorization of Wholesail to debit, charge, and otherwise recover funds from Seller’s Payout Account; (ii) right offset against funds pending settlement to Seller as set forth in this Agreement; and (iii) to the extent necessary, a new original authorizations to recover all or less than all of the amount Seller owes Wholesail in the event that any attempt to recover funds from Seller as set forth herein fails. Recovery Authorizations include all authorizations to take the above steps without prior notice to Seller and irrespective of (y) whether Wholesail has made demand under this Agreement; and (z) whether the obligation is contingent, matured or unmatured. Recovery Authorizations include all authorizations to take the above steps in complete compliance with Nacha’s ACH rules (the “Nacha Rules”). Seller acknowledges and agrees that its grant of Recovery Authorizations to Seller has the same legal effect as if Seller had signed a paper containing the same terms. Once Seller has provided a Recovery Authorization for a transaction, Seller will not be able to cancel it.
4.6 Automated Clearinghouses. Seller acknowledges and agrees that Recovery Authorizations constitute Seller’s authorization to Wholesail to process payments to and from Seller through an Automated Clearinghouse (ACH) credit or debit transaction. Wholesail reserves the right to resubmit any Seller-authorized ACH debit that is returned for insufficient or uncollected funds, except as otherwise provided by the ACH Rules, or applicable law.
4.7 Seller Credit Card Charges and Automatic Charges to Buyers.
4.7.1 Seller agrees to only charge a Buyer where Seller has obtained approval from Buyer to do so. If Seller collects written permission and authorization from a Buyer independently of Wholesail, Seller agrees to retain such authorizations pursuant to Nacha Rules and any other applicable laws, regulations, or payment card network rules (“Permission Records”). Wholesail reserves the right to request Seller’s Permission Records at any time, including in the case of a dispute among any of the parties, and, if so requested, Seller shall immediately provide such Permission Records to Wholesail.
4.7.2 Seller agrees to only configure automatic charges to Buyer’s payment method, and enter Buyer’s information in order to initiate such charges, if Seller has express approval through Wholesail or has Permission Records from Buyer (including without limitation through an appropriate Buyer representative) to do so. Seller represents and warrants that Seller will only charge a Buyer if Seller has issued a valid Invoice to Buyer and the goods and services subject to that Invoice have been delivered. Seller further agrees to initiate payments through the Wholesail Platform using credit card information provided by Buyer only with authorization from Buyer (including without limitation through an appropriate representative of Buyer), as determined by Seller in good faith or as otherwise required by applicable law, regulation, or payment card network rules.
4.7.3 Seller agrees to only charge a Buyer if there is a valid email address or phone number for the Buyer in Wholesail’s records, as provided by Seller. Wholesail will send confirmation of the Seller’s charges to the Buyer.
4.8 Transaction History. Seller may view its transaction history, Transaction Fees, and Invoices on the Wholesail Service.
4.9 Processing Errors. Wholesail will attempt to rectify processing errors it discovers. If an error results in settlement to Seller in an amount less than Seller is entitled, Wholesail will credit Seller’s Payout Account for the difference. If an error results in settlement to Seller in an amount greater than Seller is entitled, Wholesail will recover the difference from Seller’s Payout Account. Seller hereby grants Wholesail a Recovery Authorization to process such amounts. Seller’s failure to notify Wholesail of a processing error within ninety (90) days of when it first appears in Seller’s transaction history will be deemed a waiver of any right to amounts owed to Seller.
4.10 Security Interest. Seller grants Wholesail a security interest in, as well as a right of setoff against, and assign, convey, deliver, pledge and transfer to Wholesail as security for repayment of any obligations due under this Agreement all of your right, title and interest in and to all funds held by Wholesail by or on your behalf. Seller grants Wholesail Recovery Authorizations concerning funds it is obligated to repay Wholesail. Seller authorizes Wholesail to administratively freeze (or, to the extent applicable, direct any third-party holding an applicable account to administratively freeze) to freeze an applicable accounts or funds in an account to allow Wholesail to protect its security interest, collection, charge and setoff rights as provided for in this section. In the event Seller does not pay funds that it owes to Wholesail, Wholesail will have a right superior to the rights of any of Seller’s other creditors to seize or withhold funds owed to Seller for Transactions that Wholesail processes through the Wholesail Services, and to debit or withdraw funds from Seller’s Payment Account. Upon Wholesail’s request, Seller will execute and deliver any documents and pay any associated fees Wholesail considers necessary to create, perfect, and maintain a security interest in such funds (such as the filing of a form UCC-1).
4.11 Taxes. Seller must pay or reimburse Wholesail for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement, but excluding taxes based on Wholesail’s net income.
4.12 Third Party Providers. Wholesail uses third party service providers for payments services as set forth in Appendix B, which may be updated by Wholesail from time to time (“Third Party Providers”).
4.13 Payments Pending Settlement. For convenience, Wholesail provides Sellers with information regarding the amount of Invoice payments pending settlement. This information merely reflects the amount of payments processed on Seller’s behalf in connection with Transactions and does not constitute a deposit or other obligation of Wholesail (or its third party payment processors) to you. It is provided for reporting and informational purposes only. Funds pending settlement are held in accounts with Wholesail pending disbursement to Seller. Seller agrees that it has no right, title or interest with respect to such funds (including any return obtained with respect to such funds), is not entitled to any interest or other compensation associated with such funds pending settlement to Seller, that Seller has no right to direct any such account holding such funds, and that Seller may not assign any interest in the accounts held with or through Wholesail.
5. TERM; TERMINATION.
5.1 Term. This Agreement will commence on the effective date set forth in the applicable Order Form (the “Effective Date”) and continue for the length of the initial term specified therein (the “Initial Term”), unless otherwise terminated in accordance with this Section. This Agreement, and each Order Form, will renew for successive periods of the same length as the Initial Term at the end of the then-current term (each a “Renewal Term”) at Wholesail’s then-current fees, unless (a) the parties agree otherwise in the Order Form, or (b) either party notifies the other of non-renewal at least thirty (30) days prior to the expiration of the then-current term (the Initial Term, together with any Renewal Term, is the “Term”).
5.2 Termination for Cause. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. Wholesail may terminate this Agreement immediately with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice, if required by law (as determined by Wholesail in its sole discretion) or if required by a Third Party Provider.
5.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason, all outstanding payment obligations of Seller become due and payable immediately. For the avoidance of doubt, subject to Wholesail’s rights to recover and withhold amounts due to Wholesail under this Agreement, upon expiration or termination of this Agreement, Wholesail will transmit payment of funds owed to Seller prior to termination, less any applicable Transaction Fees. All definitions and the following provisions will survive the expiration or termination of this Agreement for any reason: Sections 3.3, 3.4, 3.6 and 5.3 through 10.
5.4 Data Extraction. For ninety (90) days after the expiration or termination of this Agreement, as applicable, Wholesail will make Seller’s transaction history available to Seller through the Wholesail Services on a limited basis solely for purposes of Seller retrieving its transaction history, unless Wholesail is instructed by Seller to delete such data before that period expires.
6. LICENSE; OWNERSHIP.
6.1 License from Seller. As between the parties, Seller shall own all right, title and interest in and to the Seller Content, provided that Wholesail is hereby granted a worldwide, non-exclusive, royalty-free, fully paid-up, sublicensable, irrevocable, perpetual, right and license to (i) use, store, transmit, publicly perform and display, reproduce, modify, adapt, view, process, aggregate or otherwise use the Seller Content to provide the Service or as otherwise permitted by the Privacy Policy and applicable laws and regulations, and (ii) use the Seller Content in an aggregated and anonymized form (“Anonymized Data”) for any purpose, provided, however, that no Seller-only statistics will be disclosed to third parties without Seller’s consent. Although Wholesail has no obligation to monitor Seller’s use of the Wholesail Services, Wholesail may do so and may prohibit any use of the Wholesail Services it believes may be (or is alleged to be) in violation of this Agreement, applicable laws, or any acceptable use policies posted on the Wholesail Services.
6.2 Ownership. Except for the limited rights granted in this Agreement, Wholesail hereby retains all right, title and interest, including all intellectual property rights, in and to the Wholesail Technology. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY WHOLESAIL.
6.3 Feedback. Seller hereby grants to Wholesail and its affiliates a worldwide, irrevocable, perpetual, sublicensable, royalty-free right and license to use and exploit without restriction all suggestions and feedback, including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features, regarding the Wholesail Services.
7. CONFIDENTIALITY.
7.1 Definition of Confidential Information. “Confidential Information” means (i) any information disclosed, directly or indirectly, by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature, and (ii) information otherwise reasonably expected to be treated in a confidential nature under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the Wholesail Technology is the Confidential Information of Wholesail. The terms (but not the existence) of this Agreement is each party’s Confidential Information. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
7.2 Use and Maintenance of Confidential Information. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party shall disclose any Confidential Information of the other party, except to employees and independent contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Wholesail may use and disclose Seller Content (i) as permitted by the features and functionality of the Wholesail Services, (ii) to Wholesail's service providers (such as Wholesail's hosting provider and Third Party Providers) so that these service providers can provide services on Wholesail's behalf, or (iii) as otherwise permitted by Section 6.1 or the Privacy Policy. Additionally, Wholesail may use and disclose Anonymized Data and feedback as permitted in Section 6. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party, and will take at least those measures that it takes to protect its own most highly confidential information. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. Wholesail may list Seller as a Seller in its promotional and marketing materials, including its website.
8. INDEMNIFICATION.
8.1 By Wholesail. Wholesail will defend at its expense any suit brought against Seller, and will pay any settlement Wholesail makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that Wholesail Technology infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Wholesail Technology becomes, or in Wholesail’s opinion is likely to become, the subject of a claim of infringement, Wholesail may, at Wholesail’s option: (a) procure for Seller the right to continue using the Wholesail Technology; (b) replace the Wholesail Technology with non-infringing software or services which do not materially impair the functionality of the Wholesail Technology; (c) modify the Wholesail Technology so that it becomes non-infringing; or (d) terminate this Agreement, and upon such termination, Seller will immediately cease all use of the Wholesail Technology. Notwithstanding the foregoing, Wholesail will have no obligation under this Section 8.1 or otherwise with respect to any infringement claim based upon (i) any use of the Wholesail Technology not in accordance with this Agreement or as specified in any associated documentation; (ii) any use of the Wholesail Technology in combination with other products, equipment, software or data not supplied by Wholesail; or (iii) any modification of the Wholesail Technology by any person other than Wholesail or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 8.1 states the sole and exclusive remedy of Seller and the entire liability of Wholesail, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
8.2 By Seller. Seller will indemnify, defend, and hold harmless at its expense any suit brought against Wholesail, and will pay any settlement Seller makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a third party claim arising out of or relating to (a) an Exclusion; (b) Seller Content, including any Invoice; (c) Seller’s use of, or inability to use, the Wholesail Services; (d) Seller’s violation of this Agreement; (e) Seller’s violation of any rights of another party, including any Buyer; (f) Seller’s violation of any applicable laws, rules or regulations; or (g) allegations that the provision, sharing or use of third-party data to Wholesail by Seller as contemplated under this Agreement and any addenda hereto infringes, misappropriates or otherwise violates any intellectual property, proprietary or privacy rights of any third party, or breaches any agreement or obligation between Seller and a third party.
8.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
9. RELEASE; DISCLAIMER; LIMITATION OF LIABILITY.
9.1 Release. Wholesail expressly disclaims any liability that may arise between users of the Wholesail Services. Because Wholesail is not involved in the actual contract between any Buyer and Seller, in the event that Seller has a dispute with one or more Buyers, Seller releases Wholesail (and Wholesail’s officers, directors, agents, investors, subsidiaries, suppliers, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
9.2 Disclaimer. SELLER EXPRESSLY UNDERSTANDS AND AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, SELLER’S USE OF THE WHOLESAIL SERVICES IS AT SELLER’S SOLE RISK, AND THE WHOLESAIL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WHOLESAIL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. WHOLESAIL DOES NOT WARRANT ANY THIRD PARTY WEBSITE CONTENT OR FUNCTIONALITY, OR THAT THE WHOLESAIL SERVICES WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. WHOLESAIL MAKES NO GUARANTEES REGARDING TRANSACTION PROCESSING TIMES OR PAYOUT SCHEDULES. WHOLESAIL MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT THE WHOLESAIL SERVICES WILL MEET SELLER’S REQUIREMENTS OR THAT THE ADVICE, RECOMMENDATIONS, RESULTS, OR INFORMATION OBTAINED FROM USE OF THE WHOLESAIL SERVICES WILL BE ACCURATE OR RELIABLE. WHOLESAIL ONLY PROVIDES A PLATFORM FOR SELLERS AND BUYERS. WHOLESAIL DOES NOT HAVE CONTROL OVER ANY BUYER, THE TRUTH OR ACCURACY OF INFORMATION PROVIDED BY BUYER, OR BUYER’S INTEGRITY, RESPONSIBILITY, OR ACTIONS. SELLER IS SOLELY RESPONSIBLE FOR SELLER AND ITS AUTHORIZED USERS’ INTERACTIONS WITH ANY THIRD PARTY AS A RESULT OF SALES MADE THROUGH THE WHOLESAIL SERVICES AND ANY OTHER PARTIES WITH WHOM SELLERS AND ITS AUTHORIZED USERS INTERACT WITH THROUGH THE WHOLESAIL SERVICES; PROVIDED, HOWEVER, THAT WHOLESAIL RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO INTERCEDE IN SUCH DISPUTES. SELLER AGREES THAT WHOLESAIL WILL NOT BE RESPONSIBLE FOR ANY LIABILITY INCURRED AS THE RESULT OF SUCH INTERACTIONS. WHEN INTERACTING WITH OTHERS, SELLER AND ITS AUTHORIZED USERS SHOULD EXERCISE CAUTION AND COMMON SENSE TO PROTECT PERSONAL SAFETY AND PROPERTY.
9.3 Third-Party Data Disclaimer. SELLER ACKNOWLEDGES AND AGREES THAT CERTAIN DATA OR CONTENT MADE AVAILABLE THROUGH THE WHOLESAIL SERVICES IS PROVIDED BY THIRD-PARTY SOURCES. WHOLESAIL DOES NOT CREATE, ORIGINATE OR INDEPENDENTLY VERIFY THE ACCURACY, COMPLETENESS, OR TIMELINESS OF SUCH DATA AND DISCLAIMS RESPONSIBILITY FOR ERRORS OR OMISSIONS THEREIN.
9.4 New Features. FROM TIME TO TIME, WHOLESAIL MAY OFFER NEW PRODUCT FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT WHOLESAIL’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
9.5 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 7 OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY SELLER TO WHOLESAIL UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE APPLICABLE CLAIM AROSE. EXCEPT FOR ANY ACTION BY WHOLESAIL FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE DATE THE CLAIM AROSE. IN NO EVENT WILL WHOLESAIL’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
10. GENERAL PROVISIONS.
10.1 Changes. Wholesail may make changes to the Wholesail Services in order to comply with changes to relevant laws and standards (including Payment Card Industry Data Standard Security Requirements or ACH Rules), as well as the rules set by Third Party Providers.
10.2 Assignment. Except as expressly set forth in this Agreement, neither party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Wholesail may assign this Agreement without the written consent of Seller as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. Any attempted assignment in violation of the foregoing shall be null and void.
10.3 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet. The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.
10.4 Governing Law; Venue. The rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods; rather such rights and obligations shall be governed by and construed under the laws of the State of California, including its Uniform Commercial Code, without reference to its conflict of laws principles. Seller hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the City and County of San Francisco, California for any lawsuit filed there against Seller by Wholesail arising from or related to this Agreement.
10.5 Miscellaneous. This Agreement is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. All notices required or permitted under this Agreement must be delivered in writing, if to Wholesail, by emailing legal@paywholesail.com, and if to Seller by emailing the email address set forth on the corresponding purchase order or by a nationally-recognized express mail service to the business address of either party. Either party may substitute its address for notice by providing written notice thereof to the other party. Wholesail may use subcontractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision. Seller agrees to comply with all applicable export control laws and regulations related to its use of Wholesail Technology.
Appendix A
Fees
1. Fees. Wholesail will apply the fees set out below. Fees are deducted from amounts processed by Wholesail, or from the Seller’s Payment Account.
2. Transaction Fee
The Transaction Fee is assessed on all ACH or credit card transactions made through Wholesail Services.
The Transaction Fee is not to be passed along as a convenience fee to Buyers.
3. Credit Card Fee
In connection with the Services, Wholesail will charge a 2.75% convenience fee to Buyers for credit card transactions (the “Card Fee”). The Card Fee may be modified as agreed upon in writing between Buyer and Seller, provided that Seller sends such confirmation to support@paywholesail.com. The Card Fee is subject to change at any time upon written notice by Wholesail.
4. Subscription Fee
The monthly subscription fee is to be charged to the Seller’s Payment Account on the 1st of every month.
5. Setup Fee
In the event there is a “Setup Fee” in the Order Form, Wholesail will charge a setup fee (the “Setup Fee”) for configuring and customizing the Wholesail Service to the Seller’s process and accounting system. The Setup Fee is to be paid within thirty (30) business days of execution of the Order Form. Seller authorizes Wholesail to charge the Setup Fee to Seller’s Payment Account on file with Wholesail.
The Setup Fee is a deposit and will be used to offset the monthly subscription fee and Transaction Fees.
6. Other Fees
Dispute Fee: $15 per disputed payment. There is a fee for disputes regardless of whether they are resolved in a Seller’s favor (the “Dispute Fee”).
Failed ACH Payment: $15 per attempted Transaction (the “Failed ACH Fee”).
Seller agrees to pay any Dispute Fee or Failed ACH Fee directly to Wholesail within fourteen (14) days of receipt of an invoice from Wholesail. If Seller has already received disputed or returned payment, the Seller is responsible for reimbursing full payment (including any credit card convenience fees passed to Buyer) to Wholesail.
7. Seller Fee Obligations
If the Transaction Fee is not deducted from amounts processed by Wholesail, then the Seller agrees to configure Autopay (as defined below) to pay the Transaction Fee directly to Wholesail on a weekly basis within seven (7) days of receipt of an invoice from Wholesail. “Autopay” is the functionality of the Wholesail Services that automatically initiates ACH debits or credit-card charges to a Buyer’s designated payment method in order to pay one or more Invoices without further action by the Buyer.
Appendix B
Third Party Providers
Wholesail uses Stripe, Inc. (“Stripe”) and Plaid Inc. (“Plaid”) as third party service providers for payment services. Wholesail uses Plaid to gather user data from financial institutions. By using the Wholesail Services, Seller grants Wholesail and Plaid the right, power, and authority to act on Seller’s behalf to access and transmit Seller’s financial information from the relevant financial institution. Seller agrees to Seller’s financial information being transferred, stored, and processed by Plaid in accordance with the Plaid Privacy Policy: https://plaid.com/legal. By using the Wholesail Services, Seller also agrees to be bound by Stripe’s Privacy Policy: https://stripe.com/Wholesail/privacy and hereby consents and authorizes Wholesail and Stripe (and its affiliates) to share any information and payment instructions Seller provides to the minimum extent required to complete Seller’s transactions. By using the Wholesail Services, Seller agrees to be bound by the Stripe Connected Account Agreement: https://stripe.com/us/connect-account/legal.
Appendix C
Wholesail Dispute Policy
Wholesail provides a platform that allows Sellers to issue an Invoice to Buyers and for Sellers to receive payments from Buyers pursuant to that Invoice. Buyers contract directly with Sellers for Transactions. Wholesail does not own or sell the items offered by Sellers and the actual contract for sale is directly between Sellers and Buyers. The Seller is solely responsible for Invoices and setting the prices that Sellers charge Buyers. On behalf of Seller, Wholesail will charge the Buyer’s Payment Account when the Buyer pays an Invoice.
Processing Errors
Wholesail will attempt to rectify processing errors it discovers. If an error results in a charge of more funds than the Buyer authorized, Wholesail will credit the Buyer’s Payment Account for the difference and debit the Seller’s Payment Account for the difference.
If an error results in a charge of less funds than authorized by the Buyer, Wholesail will recover the difference from the Buyer’s Payment Account and credit the Seller’s Payment Account. Failure for a buyer or seller to notify Wholesail of a processing error within ninety (90) days of when it first appears in Seller’s or Buyer’s transaction history will be deemed a waiver of any right to amounts owed to you.
Buyer Voiding a transaction through Wholesail
Buyers can void a Transaction on Wholesail only when funds have not yet been transmitted. Funds are transmitted the same Business Day when sent before the Cutoff Time and next the Business Day when sent after the Cutoff Time. Transactions cannot be voided after funds have been transmitted to the Seller. If a Transaction is voided, no payment is deemed received by Wholesail on behalf of Seller.
Requesting a credit
If the Buyer determines an error with the Invoice or items delivered after payment has been transmitted to the Seller, the Buyer should request a credit directly from the Seller.
If the Seller is not responsive to the Buyer’s credit request, Buyer can dispute payments by contacting Wholesail at support@paywholesail.com, but Wholesail does not participate in the purchase terms between Seller and any Buyer and cannot guarantee any resolution.
Seller should capture a signature from a representative of the Buyer at the point of delivery as proof the items identified on the Invoice were received, inspected, and accepted. If a Buyer disputes a transaction through Wholesail, Wholesail will request proof of delivery from the Seller such as an invoice signed by the buyer.
Disputes, Chargebacks, Refunds, Reversals
Seller is immediately responsible to Wholesail for all disputes, refunds, reversals, returns, or fines regardless of the reason or timing. Seller is liable to Wholesail for the full amount of any settled payment plus any fees if the payment is later invalidated for any reason, including in connection with a claim or a chargeback, or if there is a reversal of the payment.
If a Buyer later disputes the payment or files a claim for a chargeback, the debit or credit card issuer or the originating bank, not Wholesail, will determine whether the dispute is valid and to whom payment is due. Seller agrees to allow Wholesail to recover any amounts due to Wholesail by (i) offset against Seller’s daily receipts from such Buyer, or, if there are no daily receipts, (ii) debiting Seller’s Payment Account or FBO Account, and Seller grants Wholesail a Recovery Authorization as set forth in Wholesail - Seller Terms of Service. If there are insufficient funds in Seller’s balance to cover Seller’s liability, Seller agrees to reimburse Wholesail through other means. If Wholesail is unable to recover the funds from Seller’s Payment Account, Wholesail may take other legal actions to collect the amount due, to the extent allowed by applicable law.
Cutoff time
Wholesail’s ACH-related Services are subject to processing cutoff times (“Cutoff Times”) that may change from time to time. These Cutoff Times are determined by Wholesail’s payment processing providers. Any payments received after a Cutoff Time or on a day that is not a Business Day will be transmitted on the next Business Day. The Cutoff Time for Wholesail’s ACH provider is 6:50 PM Pacific Time. Any payments made after 6:50 PM PT will not be transmitted until the next Business Day.
Product-Specific Terms – Buyer Onboarding
Seller’s use of the Wholesail Services is subject to the Wholesail Terms of Service Agreement (the “Terms of Service”) as well as the following additional terms and conditions, as may be updated and amended by Wholesail from time to time. Any capitalized terms used but not defined below have the meanings in the Terms of Service.
1. New Buyer Onboarding For Sellers. The Wholesail Services include a product that facilitates the onboarding of Seller’s new Buyer customers (“Buyer Onboarding Product”). Using the Buyer Onboarding Product, Seller can customize an online customer application for its prospective Buyers to complete. Seller can then evaluate such prospective Buyer and accept or reject them. If and when approved, Seller is able to automatically sync such Buyer back to Seller’s system of record, or keep the application within the Wholesail Services if it so chooses. Seller’s use of the Buyer Onboarding Product is subject to any additional terms and conditions presented to Seller within the Buyer Onboarding Product experience.
2. Disclaimers. Without limiting anything set forth in the Terms of Service, by agreeing to these Product-Specific Terms, Seller acknowledges and agrees that it is solely responsible for determining the eligibility of any prospective Buyer when using the Buyer Onboarding Product. Wholesail is not a party to any such prospective relationship and merely provides tools and technology through the Wholesail Services to streamline Seller’s and any prospective Buyer’s experience. Seller’s actual contractual relationship with any Buyer is subject to Seller’s own terms of service and privacy policy made available to each Buyer at the time of potential onboarding. Content is provided by Wholesail within the Buyer Onboarding Product for convenience only, and Seller is responsible for any content ultimately presented to any Buyer within the online customer application process.
3. Privacy. Any data collected by Wholesail through use of the Buyer Onboarding Product is subject to Wholesail’s published privacy policy for the Wholesail Services located here, as may be updated or amended by Wholesail from time to time in its sole discretion (“Privacy Policy”).