Updated May 10th, 2024
This Partner Program Agreement ("Agreement") is a legal agreement between PayWhirl, Inc. (“PAYWHIRL”, “PayWhirl”, "we", "us", or "our") and you ("you", "your", or "Partner"), which governs your participation in the PayWhirl Partner Program (the "Program"). The Program is designed to allow you to market and promote PayWhirl’s subscription management and billing software services (collectively referred to as the "Services" or “Service”).
YOUR PARTICIPATION IN THE PROGRAM IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. BY PARTICIPATING IN THE PROGRAM IN ANY MANNER, YOU AGREE THAT:
(i) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT,
(ii) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PAYWHIRL, AND
(iii) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE PARTNER, AND TO BIND THAT COMPANY TO THE AGREEMENT.
THE TERMS OF THIS AGREEMENT INCLUDE, WITHOUT LIMITATION, YOUR OBLIGATIONS TO COMPLY WITH THE PAYWHIRL PARTNER PROGRAM POLICIES, THE LIMITATIONS ON YOUR USE OF THE PAYWHIRL SERVICES, AND PAYWHIRL'S RIGHTS AND REMEDIES IN CASE OF YOUR VIOLATION OF THE AGREEMENT.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT PARTICIPATE IN THE PROGRAM. YOUR REMEDY FOR DISSATISFACTION WITH THE PROGRAM, OR ANY PRODUCTS, SERVICES, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THE PROGRAM, IS TO STOP PARTICIPATING IN THE PROGRAM. YOUR AGREEMENT WITH PAYWHIRL REGARDING COMPLIANCE WITH THESE TERMS BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR PARTICIPATION IN THE PROGRAM.
ARBITRATION AND WAIVER OF CLASS ACTION NOTICE. THESE TERMS CONTAIN IMPORTANT PROVISIONS INCLUDING AN ARBITRATION PROVISION THAT REQUIRES ALL DISPUTES TO BE RESOLVED BY BINDING ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND A WAIVER OF RIGHTS TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. PLEASE SEE SECTION 13 (DISPUTE RESOLUTION) AND SECTION 13.2 (WAIVER OF CLASS ARBITRATION OR ACTIONS) BELOW.
1. Definitions
1.1 Partner
Shall mean an entity that has agreed to the terms of the Partner Program herein to work with PayWhirl to promote the Service by referring clients to PayWhirl.
1.2 Creative
Shall mean any marketing and/or promotional materials relating to PayWhirl and/or PayWhirl brands that are promoted by PayWhirl and PayWhirl Related Entities as PayWhirl deems necessary or appropriate.
1.3 Confidential Information
Shall include, but shall not be limited to, any and all information associated with the other Party’s business and not publicly known, including, the contents of this Agreement, specific trading information, technical processes and formulas, source codes, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary.
1.4 The Service
Refers to the PayWhirl software platform available via the PayWhirl website and any associated websites including www.paywhirl.com, app.paywhirl.com, and any others.
1.5 Lead
Shall mean any unique user that has registered for a paid PayWhirl account introduced by a PayWhirl Partner that actively promoted the Platform. A Lead cannot be an account opened and/or owned by a PayWhirl Partner and for which that Partner seeks commissions or compensation pursuant to this Agreement.
1.6 Malware and Spyware
Relates to the use of pop-up banners that hide banners that are displayed on a website, the placement of icons beside keywords found in text that if clicked will take the visitor to another website, and other similar practices.
1.7 Names and Trademarks
Refers to any names and/or trademarks or any other protected marks associated with the PayWhirl Service and PayWhirl Inc.
1.8 Opt-in List
Shall mean the list of emails where the individuals on the list have expressly elected to receive e-mails from PayWhirl Partners.
1.9 Prospective Partners
Refers to any other marketing organizations and/or website owners and/or operators that may be potential Partners of PayWhirl.
1.10 Related Entity[ies]
Shall mean any entity that, directly or indirectly, controls, is controlled by, or is under common control with, PayWhirl; where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.
1.11 Territory
Shall mean any area, location, territory or jurisdiction as defined by PayWhirl from time to time and subject to the terms of use of the PayWhirl Service.
1.12 Websites
Refers to any PayWhirl account associated with websites that are managed by a PayWhirl Partner that currently have or will have a marketing arrangement with PayWhirl.
1.13 Terms
“Registration Process” refers to the process whereby a Lead selects and confirms a billing plan either during the initial registration of their account or at any subsequent time during the use of the Service.
“Lifetime” refers to the period of time the account is in existence, and/or the period of time the PayWhirl Partner has a Partner relationship with the account, and/or the period of time the PayWhirl Partner has an active Partner account.
“Monthly Fees”
“Account Plan” means the set fee that the Merchant agreed to pay each month by completing the Registration Process. The Monthly Fee is charged each month regardless of the number of transactions made by the Merchant. This plan includes the Monthly Fee and may incorporate other Service elements as specified during the Registration Process such as the percentage of Transaction Fees paid.
“Transaction Fees” means the fee that is accumulated based on each transaction made on behalf of the Merchant and charged as a percentage of those transactions. The specific rate charged on each transaction is the rate agreed to by the Merchant at the completion of the Registration Process.
2. Responsibilities of the Partner
2.1 Activities
The PayWhirl Partner will use its best efforts to (a) promote and market PayWhirl, and (b) identify for PayWhirl prospective Leads. In no event shall PayWhirl Partner engage in any marketing or promotional activity related to PayWhirl in any area, location, territory or jurisdiction outside of the Territory as defined by PayWhirl from time to time. PayWhirl Partner shall bear all costs and expenses for such activities unless otherwise determined by PayWhirl, in its sole discretion.
2.2 Creative
All Creative will be solely provided by PayWhirl alone except where agreed to by PayWhirl in writing in advance. PayWhirl will provide PayWhirl Partner with copies of or access to Creative. The Creative shall be accessible from PayWhirl Partner Program website. The Creative is provided “as is” and without warranty of any kind.
2.3 Use of Creative
PayWhirl Partner may display Creative on the Websites solely for the purpose of marketing and promoting PayWhirl brands promoted by PayWhirl and by PayWhirl Related Entities during the term of this Agreement, or until such earlier time as PayWhirl may, upon reasonable prior notice, instruct PayWhirl Partner to cease displaying the Creative. PayWhirl Partner may not alter, amend, adapt or translate the Creative without PayWhirl's prior written consent. Nothing contained in any Creative shall in any way be deemed a representation or warranty of PayWhirl or any of PayWhirl Related Entity. The Creative shall at all times be the sole and exclusive property of PayWhirl and no rights of ownership shall at any time vest with the PayWhirl Partner even in such instances where the Partner has been authorized by PayWhirl to make changes or modifications to the Creative.
2.4 E-Mail Internet Marketing
In no event shall a PayWhirl Partner engage in any e-mail marketing or promotion with respect to PayWhirl and/or any PayWhirl Related Entity except as expressly set forth in this Agreement. In the event that PayWhirl Partner has an Opt-in List, PayWhirl Partner may make a written request to PayWhirl to send e-mails regarding the offering of PayWhirl and PayWhirl Related Entities to the individuals on the Opt-in List. In the event PayWhirl approves such request, PayWhirl Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to e-mail marketing and “spamming”. Without limiting the generality of the foregoing, PayWhirl Partner shall (a) not send any e-mail regarding PayWhirl and/or PayWhirl Related Entities to any individual or entity that has not requested such information and (b) always include “unsubscribe” information at the top and bottom of any e-mail regarding PayWhirl, PayWhirl Related Entities and/or the PayWhirl platform.
If PayWhirl does give permission, the messages must comply with all the laws about this type of marketing.
2.5 Unauthorized & Prohibited Marketing Activities
In addition to the restrictions of Section 2.4 above, a PayWhirl Partner shall not (a) engage in any fax, broadcast or telemarketing and any other offline marketing methods with respect to PayWhirl, PayWhirl Related Entities and/or PayWhirl; (b) use Malware and/or Spyware techniques or use any other aggressive advertising or marketing methods in any of its dealings relating to PayWhirl, PayWhirl Related Entities and/or PayWhirl; (c) make any false, misleading or disparaging representations or statements with respect to PayWhirl, PayWhirl Related Entities or PayWhirl; (d) misrepresent the PayWhirl Partner’s affiliation with PayWhirl; or (e) engage in any other practices which may affect adversely the credibility or reputation of PayWhirl, PayWhirl Related Entities or PayWhirl, including but not limited to, using any Website in any manner, or having any content on any Website, that (i) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age and/or any illegal activities or (ii) violates any intellectual property or other proprietary rights of any third party.
The Partner must not make any false or misleading statements about PayWhirl or represent anything that could cause harm to the credibility of the company.
2.6 Prohibited Marketing Activities by a Partner
A PayWhirl Partner shall not purchase search engine or other pay-per-click keywords (such as Google AdWords), or domain names that use PayWhirl or PayWhirl Payments' trademarks and/or variations and misspellings thereof.
2.7 Compliance with Laws
In addition to, and without limiting the provisions of this Agreement, PayWhirl Partner shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.
2.8 Partner Duty to Inform
PayWhirl Partner shall promptly inform PayWhirl of any information known to PayWhirl Partner related to any Leads or prospective Partners that could reasonably lead to a claim, demand or liability of or against PayWhirl and/or the PayWhirl Related Entities by any third party.
3. Fees and payment
PayWhirl Partner shall be entitled to receive the Fees as set forth below under “PayWhirl Partner Commercial Terms” (the “Fees” and/or the “Partner Fees”). The Fees shall be due on a periodic basis in accordance with the date of sign up to the Partner Program. All payments are subject to risk analysis considerations and Anti-Money Laundering procedures. PayWhirl reserves the right to demand and receive information about any Lead and to assess the competency of such Lead for payments. PayWhirl reserves the right to modify the Fee structure and/or the payment terms at any time without notice to PayWhirl Partner. PayWhirl shall not be responsible to pay any commissions for a Lead created or owned in whole or in part by a PayWhirl Partner.
4. Termination
4.1 Termination
PayWhirl may terminate this Agreement at any time, with or without cause, effective immediately upon notice to PayWhirl Partner.
Fraudulent or other unacceptable behavior as defined by PayWhirl can result in termination of Partner/client relationship or termination of Partner account entirely without notice to, or recourse for, the PayWhirl Partner.
PayWhirl Partner, can terminate this Agreement at any time, with or without cause, effective immediately upon notice to PayWhirl.
If there is fraud or any other unacceptable behavior by the Partner, PayWhirl can end the agreement without notice.
4.2 Consequences of Termination
Upon expiration or termination of this Agreement: (a) each Party shall return to the other Party all property of the other Party in its possession or control (including all Creative and all Confidential Information); (b) PayWhirl Partner shall immediately cease displaying any Creative on any Website or otherwise; and (c) all rights granted to PayWhirl Partner hereunder will immediately cease.
4.2.1 Settlement of Accounts
Upon termination of this Agreement for any reason, all outstanding payments owed to the PayWhirl Partner will be subject to a final audit and reconciliation. PayWhirl agrees to pay any undisputed accrued fees owed to the Partner within thirty (30) days of termination, subject to deductions for any amounts owed by the Partner to PayWhirl as agreed upon or as stipulated by this Agreement.
4.2.2 Forfeiture of Payments
In cases where termination is due to breach of this Agreement by the Partner, including but not limited to, fraud, misrepresentation, or violation of proprietary rights, PayWhirl reserves the right to withhold any pending payments as damages for such breaches. The Partner will be notified of the specific reasons for such forfeiture.
4.2.3 Dispute Resolution
If the Partner disputes the calculation or forfeiture of payments, the dispute shall be handled through the arbitration process as outlined in Section 12 (Dispute Resolution and Arbitration) of this Agreement.
5. Proprietary rights
5.1 Proprietary Rights of PayWhirl
As between PayWhirl Partner and PayWhirl, the Creative, all demographic and other information relating to Leads, Prospective Partners and Partners, the Platforms and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of PayWhirl or otherwise related to PayWhirl, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “PayWhirl Property”) shall be and remain the sole and exclusive property of PayWhirl. To the extent, if any, that ownership of any PayWhirl Property does not automatically vest in PayWhirl by virtue of this Agreement, or otherwise, PayWhirl Partner hereby transfers and assigns to PayWhirl, upon the creation thereof, all rights, title and interest PayWhirl Partner may have in and to such PayWhirl Property, including the right to sue and recover for past, present and future violations thereof.
5.2 PayWhirl Trademarks
During the term of this Agreement, PayWhirl hereby grants to PayWhirl Partner a limited, revocable, non-exclusive and non-transferable license to display the PayWhirl trademarks, solely as necessary to perform PayWhirl Partner’s obligations under this Agreement. PayWhirl Partner acknowledges and agrees that: (a) it will use the PayWhirl trademark only as permitted hereunder; (b) it will use the PayWhirl trademark in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by PayWhirl; (c) the PayWhirl trademark are and shall remain the sole property of PayWhirl; (d) nothing in this Agreement shall confer in PayWhirl Partner any right of ownership in the PayWhirl trademark and all use thereof by PayWhirl Partner shall inure to the benefit of PayWhirl; and (e) PayWhirl Partner shall not, now or in the future, contest the validity of any PayWhirl trademarks or use any term or mark confusingly similar to any PayWhirl Trademark.
6. Confidential
Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations hereunder. Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (a) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations hereunder, who each shall treat such Confidential Information as provided herein; or (b) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement. Confidential Information shall not include any information which is: (i) in the public domain, or is already known by or in the possession of the non-disclosing Party, at the time of disclosure of such information; (ii) is independently developed by the non-disclosing Party without breaching any provisions of this Agreement; or (iii) is thereafter rightly obtained by the non-disclosing Party from a source other than the disclosing Party without breaching any provision of this Agreement.
Confidential information must be protected and respected.
7. Disclaimer of warranty
PayWhirl makes no warranties hereunder, and PayWhirl expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, PayWhirl further disclaims all representations and warranties, express or implied, that the platforms do not infringe or otherwise violate any intellectual property or other proprietary right of any third party in any jurisdiction, including, but not limited to, the territory. PayWhirl Partner understands and agrees that the platforms may not satisfy all of the Leads’ requirements and may not be uninterrupted or error-free.
8. Limitation of liability and indemnification
8.1 Limitation of Liability
PayWhirl shall have no liability with respect to the platforms or its obligations under this agreement or otherwise for any indirect, consequential, exemplary, special, incidental or punitive damages even if PayWhirl has been advised of the possibility of such damages. In any event, PayWhirl’s liability to PayWhirl Partner under this agreement for any reason will be limited to the amounts paid to Partner by PayWhirl during the six (3) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts.
If there is a liability owed to the Partner, PayWhirl will provide no more than what was paid to the Partner 3 months prior to the event.
8.2 Indemnification
8.2.1 PayWhirl Partner Indemnification.
PayWhirl Partner agrees to indemnify, defend and hold harmless PayWhirl and any PayWhirl Related Entities and the directors, officers, employees, subcontractors and agents thereof (collectively, the “Indemnified Party”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of: (a) PayWhirl Partner ‘s breach of any representation, warranty, obligation or covenant under this Agreement; (b) PayWhirl Partner’s gross negligence or willful misconduct; or ( c) any warranty, condition, representation, indemnity or guarantee relating to PayWhirl and PayWhirl Related Entities granted by PayWhirl Partner to any Lead, Prospective Partner or other third party.
8.2.2 Notice of Indemnification.
In claiming any indemnification hereunder, the Indemnified Party shall promptly provide PayWhirl Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the foregoing paragraphs. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that PayWhirl Partner shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which shall not be unreasonably withheld.
9. Non-exclusive remedies
In the event (a) PayWhirl Partner markets or promotes PayWhirl and/or any PayWhirl Related Entity that promotes the PayWhirl platform to any person or entity outside of the Territory or (b) of any breach or threatened breach of any provision of Sections 2, 5 and/or 6 above, in addition to all other rights and remedies available to PayWhirl under this Agreement and under applicable law, PayWhirl shall have the right to (i) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (ii) immediately terminate this Agreement and PayWhirl Partner ’s engagement hereunder, (iii) receive a prompt refund of all amounts paid to PayWhirl Partner hereunder and (iv) be indemnified for any losses, damages or liability incurred by PayWhirl in connection with such violation, in accordance with the provisions of Section 8 above.
10. General provisions
10.1 Force Majeure
If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.
10.2 Independent Contractors
The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or Related Entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
10.3 Notice
Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally or by e-mail to the Party to which the same is directed; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid, to the respective addresses of the Parties as set forth on the Registration Page.
10.4 No Waiver
The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving Party.
10.5 Entire Agreement
This Agreement, including all Exhibits hereto, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof as set forth herein. Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
10.6 Assignment
All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, assigns and legal representatives. PayWhirl Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without PayWhirl’s prior written consent, to be given or withheld in PayWhirl’s sole discretion.
11. Partner Revenue Share
11.1 Product Categories
Partners can refer Leads to two different PayWhirl products:
PayWhirl for Shopify: A native Shopify app developed by PayWhirl.
PayWhirl Multi-Platform: The main website application available at paywhirl.com.
11.2 Classification of Partners
Existing Partners: Partners with referrals made before May 15, 2024.
New Partners: Partners who create accounts after the updated terms on May 15, 2024.
11.3 Revenue Sharing Terms
Existing Partners:
Shopify App Referrals: 15% revenue share.
Multi-Platform Referrals: 20% revenue share on both existing and future referrals.
Duration of Revenue Share: Revenue share is valid for 12 months from the date a Lead is linked to the Partner Account. Pre-existing referrals will earn revenue until June 30th, 2025.
New Partners:
Both Product Referrals: 15% revenue share on Shopify app and multi-platform referrals.
Duration of Revenue Share: Revenue share is valid for 12 months from the date a Lead is linked to the Partner Account.
11.4 Calculation Examples
A PayWhirl Multi-Platform Referral from a new Partner referring a business that is paying $100/month for their Account Plan (for easy math) and processing $1000/month with a 1% Transaction Fee rate.
Account Plan Charge: $100 - $3.20 (PayWhirl's processing fees) = $96.80
15% Revenue Share from Account Plan: $96.80 * 0.15% = $14.52
Transaction Fees: $1000 * 1% = $10
15% Revenue Share from Transaction Fees: $10 * 15% = $1.50
Total Monthly Revenue Share: $14.52 + $1.50 = $16.02
11.5 Special Provisions for Existing Partners
Previously, existing Partners could earn revenue share indefinitely from accounts they referred. Effective immediately, existing Partners will only earn revenue share for 12 months from the referral date, extending to a final date of June 30, 2025, for referrals made prior to the updated terms.
11.6 Payment of Revenue Share
Commissions are calculated quarterly and paid out within 15 days following the end of each quarter close. Payments will be made through PayPal.
11.7 Adjustments and Disputes
Adjustments: Any adjustments due to plan changes or cancellations will be processed in the subsequent quarterly payment cycle.
Dispute Resolution: Partners must notify PayWhirl of any disputes regarding commission calculations within 30 days of the payment date. Disputes will be investigated promptly, and any necessary adjustments will be made in the following payment cycle.
12. Revenue Calculation and Finality
12.1 Revenue Calculation
PayWhirl shall calculate all Fees payable to the PayWhirl Partner under the terms of this Agreement based on its own internal methodologies and accounting practices. The methods for calculating Fees include, but are not limited to, total revenues received, deductions for refunds, chargebacks, and any other applicable discounts or fees as determined by PayWhirl.
12.2 Finality of Calculation
The PayWhirl Partner agrees that all determinations by PayWhirl regarding revenue calculations, Fees payable, and related statistics are final and binding. The Partner waives any right to challenge or dispute such calculations except in cases of manifest error.
12.3 Reporting
PayWhirl will provide the Partner with access to a Partner portal where statements outlining the revenue share earned. These statements are intended to provide transparency on earnings and deductions and are subject to the finality provisions stated above.
13. Dispute Resolution & Arbitration
13.1 Dispute Resolution
In the event of any controversy or claim arising out of or relating to these Terms, or any breach thereof, such controversy or claim shall be determined and finally settled by confidential, binding arbitration, conducted in English, held in Los Angeles County, California, administered by the American Arbitration Association (“AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Any claimants must file an individual request for arbitration, specifying such claimant’s identity, such claimant’s counsel, and a detailed description of the legal claims being asserted and the requested relief, including a good faith calculation of the specific amount in dispute. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
13.2 Waiver of Class Arbitration or Actions.
Any claims that You or PayWhirl assert under these Terms will be brought on an individual basis only and not on a class, consolidated, representative or collective basis. Only individual relief is available for controversies and claims arising out of or relating to these Terms, or any breach thereof, and You and PayWhirl agree that class arbitrations and class actions are not permitted under any circumstances. You understand that, by agreeing to these Terms, You and PayWhirl are waiving the right to participate in any form of class arbitration and/or class action.
14. Data Protection and Privacy
14.1 Data Protection Compliance
The PayWhirl Partner agrees to comply with all applicable data protection laws and regulations in connection with their performance under this agreement. The Partner must adhere to the standards and obligations set forth in PayWhirl's Data Protection Agreement, available at https://paywhirl.com/data-protection, which is incorporated herein by reference.
14.2 Privacy Policy
The Partner agrees to handle all customer and personal data in accordance with PayWhirl's Privacy Policy, as amended from time to time, which is incorporated into this Agreement by reference and can be found at https://paywhirl.com/privacy. The Partner shall ensure that all communications and engagements under this agreement uphold the confidentiality and privacy standards specified in the Privacy Policy.
14.3 Changes to Data Protection and Privacy Policies
PayWhirl reserves the right to amend the Data Protection Agreement and Privacy Policy at any time. The Partner agrees to review these documents periodically to ensure continued compliance with any changes or updates.
Updated May 10th, 2024