Capitalized terms used but not defined in this Agreement have the meanings given to them in the Shopify Agreements.
"Acceptable Reason Codes" has the meaning set out in section 2.2, below.
"Acquiring Bank" means a financial institution that enters into a contract with the Merchant authorizing the Merchant to accept payment cards.
"Chargeback" means the reversal of a payment card transaction in response to a request that a Customer files directly with his, her or its Issuing Bank or Payment Network to invalidate a processed payment.
"Chargeback Amount" means the dollar value of the transaction that is subject to a Chargeback, plus any fees, fines, expenses, penalties, or other costs assessed directly to the Merchant or to Merchant's Processor or Acquiring Bank in connection with the Chargeback.
"Chargeback Notice" means a communication a Merchant receives from the Merchant's Processor, Acquiring Bank or a Payment Network indicating that a payment card transaction completed with the Merchant is the subject of a Chargeback.
"Chargeback Monitoring Program" means any monitoring program operated by a card network that merchants may be placed in if their fraud and/or risk exceeds the thresholds or acceptable levels dictated by a card network.
"Chargeback Reason" means the reason, explanation, or justification for a Chargeback provided in a Chargeback Notice.
"Customer" means a person or business entity that purchases goods or services from the Merchant.
"Issuing Bank" means a financial institution that issues a credit card or other form of payment card to a Customer.
"Payment Networks" means American Express, Discover, MasterCard, Visa, or other applicable card networks.
"Processor" means a business entity that provides payment card transaction processing services to the Merchant and/or the Merchant's Acquiring Bank.
"Shopify Payments" means the Shopify payments service that helps you accept and process credit card, debit card and other types of card payments from your Customers in exchange for your products and services.
"Shopify Protect" means the fraud protection warranty service offered by Shopify and governed by this Agreement, consisting of fraud protection warranties provided for Warrantied Transactions, as defined below and as further described in this Agreement.
"Supported Tracking Number" means tracking numbers from USPS, UPS, Canada Post, DHL Express and FedEX submitted in connection with the Warranted Transaction and purchased after the Warrantied Transaction was created.
"Transaction Amount" means the payment amount made by your Customer in connection with the associated transaction, including the aggregate price for all goods and services purchased, as well as all applicable taxes, shipping or other fees charged.
"Warrantied Transaction" has the meaning set out in section 2.2, below.
"Warranty Payment" has the meaning set out in section 2.2, below.
2. SHOPIFY PROTECT WARRANTY SERVICE
A Chargeback is typically initiated when a Customer notifies its Issuing Bank that he, she, or it disputes a transaction shown on the Customer's credit card statement. After making an initial determination that the Customer's dispute is valid, the Issuing Bank typically issues a credit to the Customer in the amount of the disputed transaction and notifies the relevant Payment Network of the dispute. After that the transaction is generally reversed, the transaction value is remitted to the Issuing Bank and the Merchant's processor or Acquiring Bank assesses certain fees on the Merchant. Depending on the applicable terms and conditions, a Chargeback may result from: (i) Customer disputes (for example, with respect to the amount of the charge, the quality of the purchased product or service, or other defects in the product or transaction), (ii) unauthorized or improperly authorized transactions, (iii) transactions that do not comply with Payment Network rules or the terms of the Shopify Agreements; (iv) allegedly unlawful or suspicious transactions; or (v) any reversals for any reason by the Payment Network, Shopify's Processor or Acquiring bank, or the Customer's Issuing Bank. Pursuant to the Shopify Payments Agreement, if Shopify Protect is not activated for a particular order you are immediately liable to Shopify for the full Chargeback Amount.
2.2 Fraud protection provided for Warrantied Transactions
Shopify will evaluate each Customer order authorized through Shopify Payments to determine whether such order represents a significant fraud risk, as determined in Shopify's sole discretion. Once an order has been placed by a Customer, Shopify will evaluate the order using certain criteria to determine whether or not the order qualifies for Shopify Protect. If an order qualifies, you will receive a communication in your Shopify Admin stating that the order is eligible for Shopify Protect. Under Shopify Protect, you will receive a warranty from Shopify (the "Shopify Protect Warranty") when you fulfill the order with a Supported Tracking Number within seven (7) days of the order being placed by the buyer and have ensured that the order's status has been marked as in transit by the carrier with ten (10) days of the order being placed by the buyer (a "Warrantied Transaction"). Any Warrantied Transaction will be protected for three hundred sixty-five (365) days. No other orders or transactions will receive the Shopify Protect Warranty.
For Warrantied Transactions, Shopify will (i) waive Chargeback-related fees assessed by Shopify pursuant to the Shopify Payments terms of service and (ii) pay you the amount stated in the Chargeback Notice submitted to Shopify in accordance with the terms of this Agreement, which amount (the "Warranty Payment") will be deposited to your Shopify Payments Account on Shopify's behalf by the Processor specified in the Shopify Payments Terms of Service (the "Processor"). Provided that you have completed the steps to activate Shopify Protect in your Shopify Admin prior to receiving a Chargeback Notice, receive a Chargeback Notice within twelve months of a Customer's order date, and the following conditions are satisfied:
(a) The Chargeback Reason is fraud-related and the Chargeback Notice identifies that one of the below chargeback codes (each, an "Acceptable Reason Code") applies:
Acceptable Reason Codes
|Reason||Processor Reason Code|
|Transaction not recognized by cardholder||Unrecognized|
|Fraudulent transaction, cardholder claims they didn't authorize the payment||Fraudulent|
(b) For purposes of receiving Payments, your Bank Account is maintained at a bank located in the United States and held in the name of your business. You are responsible for the accuracy and correctness of information regarding your Bank Account.
(c) Upon request, you provide Shopify with proof of delivery to Customer of your product or service in one of two formats:
a copy of the form your Customer received from the shipping company in relation to the order containing the delivery address, reroute information, date of delivery and the parcel delivery status; or,
a valid tracking number and shipping company related to the order.
Proof of delivery must show that the item purchased by your Customer in the Warrantied Transaction was sent to the shipping address that was stated in the order at the time such order was placed, and that the order shipped prior to date of the Chargeback Notice.
(d) The Warrantied Transaction and the related Chargeback are legitimate and you have not participated in any fraud or misrepresentations in relation to the Warrantied Transaction and the related Chargeback.
(e) You have complied with all of the Shopify Payment Terms of Service applicable to your use of the Shopify Payments service.
(f) You hereby agree that Shopify is permitted to contact and share information about you and your transactions with the relevant Payment Network(s).
2.3 Contesting your Chargebacks
If, subsequent to your receipt of a Chargeback Payment, the related Chargeback is successfully contested and you receive a payment or credit from your Processor or Acquiring Bank you hereby authorize Shopify (or the Processor acting on Shopify's ) to debit your Shopify Payments Account or Bank Account in the amount of such payment or credit.
In the event that you reclaim an item from a Customer who had initiated a Chargeback on a Warrantied Transaction, you agree that you will notify Shopify by emailing email@example.com within seven (7) days of reclaiming the item. You agree that in such an event the Processor will conduct a credit reversal in the Transaction Amount the customer originally paid for the reclaimed item or take may to another action to be determined in Shopify's sole discretion to protect the order.
Shopify may contest Chargebacks assessed to your Shopify Payments Account or Bank Account. Shopify does not assume any liability for our role or assistance in contesting Chargebacks. You agree: (i) to provide to Shopify all information in your possession regarding a Chargeback; (ii) to provide to Shopify all authorizations to communicate with any and all third parties necessary to enable Shopify to investigate or resolve a Chargeback; (iii) that Shopify may share records or other information required with the customer cardholder, the customer cardholder's financial institution, and your financial institution to help resolve any disputes; (iii) that Shopify shall verify or validate any Chargeback associated with a Warrantied Transaction by communicating with, or obtaining data from you, your customers, and/or the payment processor; (iv) that Shopify, in its sole discretion, may dispute such Chargebacks on your behalf.
2.4 Automatic Reminders
We may use automated telephone dialing, text messaging systems and email to provide messages to you about Shopify Protect. The telephone messages may be played by a machine automatically when the telephone is answered, whether answered by you or another party. These messages may also be recorded by your answering machine or voicemail. You give us permission to call or send a text message to any telephone number which you have given us and to play pre-recorded messages or send text messages with information about this Agreement or your account over the phone. You agree that we will not be liable to you for any such calls or electronic communications, even if information is communicated to an unintended recipient. You understand that, when you receive such calls or electronic communications, you may incur a charge from the company that provides you with telecommunications, wireless and/or Internet services. You agree that we have no liability for such charges. You agree to immediately notify us if you change telephone numbers or are otherwise no longer the subscriber or customary user of a telephone number you have previously provided to us.
2.5 Chargeback Monitoring Programs
If Merchant is being monitored under a Chargeback Monitoring Program or has been flagged for early identification under any Chargeback Monitoring Program, then Shopify will pause Shopify Protect, until the Merchant is no longer part of the program.
2.6 Not Insurance
Shopify Protect does not constitute insurance and is offered as an add-on to the general Shopify Payments services. Shopify and its affiliates are not insurers. Shopify is not insured for the Warranty Services provided to you pursuant to this Agreement.
3. TERMINATION AND OTHER GENERAL LEGAL TERMS
This Agreement is effective on the date you activate Shopify Protect for a particular order by following the steps in your Shopify Admin and applies to each order where it was activated. You must be actively enrolled in Shopify Payments to be eligible for Shopify Protect. You must not use Shopify Protect, directly or indirectly, for any fraudulent purpose or in any manner that may interfere with the use of Shopify Protect. We have the right to terminate you and to not provide Shopify Protect because of fraud and/or misuse, which shall be determined by us in our sole discretion.
3.2 Right to Amend or Terminate
Shopify is entitled, without any liability, to change, refuse, restrict, limit, suspend, interfere with or interrupt Shopify Protect or any part thereof, for any reason at any time, as long as such changes do not affect your rights with respect to any Warrantied Transactions effective prior to change.
If at any time you cease to satisfy one or more of the requirements set forth in this Agreement, this Agreement shall automatically terminate, and you will no longer be eligible to use Shopify Protect. Shopify may stop offering Shopify Protect at any time in its sole discretion or terminate this Agreement at any time, without cause (as long as such changes do not affect your rights with respect to any Warrantied Transactions effective prior to such change).
We have the right to change or add to the terms of this Agreement at any time, including but not limited to the Acceptable Reason codes, and to change, delete, discontinue, or impose conditions on any feature or aspect of Shopify Protect (as long as such changes do not affect your rights with respect to any Warrantied Transactions effective prior to such change) with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website or any other website maintained or owned by us for the purposes of providing Shopify Protect in terms of this Agreement. In the event that we find that you, directly or indirectly, engaged in fraud or in any manner to interfere with the use of Shopify Protect, any transactions processed prior to us terminating you will not be Warrantied Transactions. Any use of Shopify Protect after our publication of any such changes, as applicable, shall constitute your acceptance of this Agreement as modified.
3.3 Effects of Termination
Termination of this Agreement will not terminate your Shopify Payments services under the Shopify Payments Terms of Service, or your Shopify services under the Shopify Terms of Service, unless Shopify informs you otherwise. As noted above, however, if you are not a Shopify Payments customer for any reason, Shopify Protect will no longer be offered to you.
Upon termination, the only obligation we have to you is to pay you an amount equal to the Chargeback Amount for any Warrantied Transactions effective prior to the termination. However, if we have determined that you have engaged in fraud or in any manner to interfere with use of Shopify Protect, Shopify will not provide Shopify Protect.
You may choose to or we may invite you to submit comments or ideas about Shopify Protect, including without limitation about how to improve Shopify Protect or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
Without limiting the foregoing, you agree to defend, indemnify, and hold harmless Shopify, its directors, officers, employees and agents, from and against any claim, suit, demand, loss, liability, damage, action or proceeding arising out of or relating to (i) your breach of any provision of this Agreement, and/or (ii) your use of Shopify Protect; (iii) your, or your employee's or agent's, negligence or willful misconduct; or (iv) third party indemnity obligations we incur as a direct or indirect result of your acts or omissions.
If you are liable for any amounts owed to us, we may immediately remove such amounts from your Reserve Account and deduct the amounts owed to us from such Reserve Account funds. If you do not have sufficient funds in the Reserve Account to cover your liability, you will be required to immediately add additional funds to your Reserve Account to cover funds owed to us. If you do not do so, we may engage in collections efforts to recover such amounts from you at your cost and expense.
3.6 Representation and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you operate a business in the United States selling goods and services using Shopify Payments to process online card-not-present transactions; (c) you are eligible to use Shopify Protect and have the right, power, and ability to enter into and perform under this Agreement; (d) if you are using Shopify Protect on behalf of a company or business, you are authorized to act on behalf of the company or business and have the authority to bind the company or business to this Agreement; (e) you will not use Shopify Protect, directly or indirectly, for any fraudulent purpose or in any manner that may interfere with the use of the Warranty; and (f) all information provided by or on your behalf with respect to your business activities and transactions is true, complete, accurate and not misleading. Your use of Shopify Protect constitutes your confirmation to Shopify of the representations and warranties in this Agreement and of your consent to all the terms of this Agreement.
3.7 No Other Warranties
THE SERVICE AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, EXCEPT AS SET OUT EXPRESSLY HEREIN, WITHOUT ANY OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE SERVICE IS AT YOUR OWN RISK.
3.8 Limitation of Liability and Damages
EXCEPT FOR THE PAYMENT OF AMOUNTS IN ACCORDANCE WITH SECTION 2.2.2(b) WITH RESPECT TO THE SERVICE, IN NO EVENT SHALL SHOPIFY OR ITS AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE SERVICES.
SHOPIFY OR ITS AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; OR (B) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION 3.8, SHOPIFY'S CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO SHOPIFY DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF SHOPIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION 3.8 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
3.9 Disputes; Choice of Law; Jurisdiction and Venue
You agree that any disputes arising out of or relating to this Agreement or the Warranty Service shall be resolved in accordance with the terms set out in this Agreement.
This Agreement is governed by the laws of the State of New York (without regard to its choice of law provisions). Subject to Section 3.10 below, in connection with the enforcement of an award of arbitration or any other dispute arising under this Agreement that requires resolution by a court of law, the exclusive venue shall be in the appropriate state or federal court located in New York, New York. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT. You and we each represent to the other that this waiver is knowingly, willingly and voluntarily given.
Notwithstanding section 3.9, you and we agree to resolve any all claims and disputes relating in any way to this Agreement ("Claims"), except for Claims concerning the validity, scope or enforceability of this section 3.10 ("Arbitration Provision") through BINDING INDIVIDUAL ARBITRATION. This Arbitration Provision is made with respect to transactions involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA"). It is the intent of the parties that the FAA shall preempt all state laws to the fullest extent permitted by law. If the FAA is found to not apply or not preempt state law as to any issue that arises under this Arbitration Provision or the enforcement thereof, then such issue shall be resolved under the laws of the state of New York in accordance with section 3.9.
A. Individual Arbitration. By entering into this Arbitration Provision, neither you nor we will be able to have the dispute settled by a court or jury trial or to participate in a class action, collective action, class arbitration, or other representative action or proceeding. Other rights that you and we would have if you or we went to court will not be available or will be more limited in arbitration, including the right to appeal. You and we each understand that by agreeing to resolve any dispute through individual arbitration, WE ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator(s) may not consolidate more than one party's claims and may not otherwise preside over any form of a representative or class proceeding. Further, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from arbitration and may be brought in court. If any portion of this Arbitration Provision other than this paragraph's limitations is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Arbitration Provision.
B. Arbitration Rules. Arbitration of any dispute under this Arbitration Provision shall be administered by JAMS pursuant to the applicable rules of JAMS in effect at the time the arbitration is initiated. You may contact JAMS to obtain information about arbitration, by calling 800-352-5267 or visiting www.jamsadr.com. If JAMS is unable or unwilling to administer the arbitration of a dispute, then a dispute may be referred to any other arbitration organization you and we agree upon or to an arbitration organization or arbitrator appointed pursuant to section 5 of the FAA. Arbitrations shall be conducted before a single arbitrator. Any in-person arbitration shall take place in New York, New York, unless otherwise agreed by you and us in writing. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the JAMS rules. If your claim exceeds $10,000, the right to a hearing will be determined by the JAMS rules.
C. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall be authorized to award any relief that would have been available in court, provided that the arbitrator's authority to resolve claims and make awards is limited to you and us alone except as otherwise specifically stated herein. The decision by the arbitrator shall be final and binding. You and we agree that this Arbitration Provision extends to any other parties involved in any Claims, including but not limited to your and our employees, affiliated companies, and vendors. In the event of any conflict between this Arbitration Provision and the JAMS arbitration rules or the rules of any other arbitration organization or arbitrator, this Arbitration Provision shall govern.
D. Arbitration Fees and Costs. Except as otherwise provided for herein, we will pay all JAMS filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought in your arbitration demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of such fees will be governed by the JAMS rules. In such case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the JAMS rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the JAMS rules.
E. Arbitration Provision Is Optional. YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION PROVISION, BUT YOU MUST EXERCISE THIS RIGHT PROMPTLY. If you do not wish to be bound by this agreement to arbitrate, you must notify us in writing within sixty (60) days after the date of this Agreement. You must send your request to: Shopify, 150 Elgin Street, 8th Floor, Ottawa, ON, K2P 1L4 Canada ATTN: General Counsel. The request must include your full name, address, account number, and the statement "I reject the Arbitration Provision contained in my Shopify Protect." If you exercise your right under this Section XII to reject arbitration, the other terms of this Agreement shall remain in full force and effect as if you had not rejected arbitration. Opting out of this Arbitration Provision has no effect on any other or future arbitration agreements that you may have with us.
Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that we may have under trade secret, copyright, patent or other laws. Our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without consent or other restriction.
This Agreement binds you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
3.14 Entire Agreement; Remedies
These terms and conditions and all policies and procedures that are incorporated herein by reference constitute the entire agreement between you and Shopify with respect to the provision of the Warranty Service. In the event of a conflict between this Agreement and any other Shopify agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. Except as expressly provided in this Agreement, these terms describe the entire liability of Shopify, and sets forth your exclusive remedies with respect to the Warranty Service and your access and use of the Warranty Service. If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
This Agreement has been reviewed by you with the benefit of independent legal counsel to the extent you consider necessary and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the construction or interpretation of this Agreement. The rights conferred upon us in this Agreement are not intended to be exclusive of each other or of any other rights and remedies we may have at law or in equity. Rather, each and every right we may have under this Agreement, at law or in equity is cumulative and concurrent and in addition to every other right.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: Section 1, Section 2 (with respect to Warrantied Transactions effective on or prior to the termination of this Agreement), sections 3.3, 3.4, 3.5, 3.7, 3.8, 3.9, 3.10, 3.12, 3.14 and this section 3.1